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Monday, May 07, 2018

Reviewing the feds increased pursuit of ever more federal gun cases

The New York Times had this front-page piece about an increase in federal gun prosecutions under the headline "In Fight Against Violent Crime, Justice Dept. Targets Low-Level Gun Offenders." Here are excerpts:

Urged by Attorney General Jeff Sessions to punish offenders as harshly and as quickly as possible, federal prosecutors have increasingly pursued low-level gun possession cases, according to law enforcement officials and an examination of court records and federal crime statistics.... Mr. Sessions is putting into action his own long-held views on criminal justice, forged as a United States attorney in Alabama during the drug war. They reflect a philosophy popular among conservatives and long backed by the gun lobby: that the effective enforcement of existing laws can reduce crime without resorting to the passage of additional legislation.

“I believe very strongly in enforcing gun laws,” Mr. Sessions said in an interview with the far-right Breitbart News this year. “I believe there’s no value in having them on the books if they’re not prosecuted.”

Mr. Sessions’s approach has touched off a debate about whether he is making the country safer from violent crime, as he and President Trump have repeatedly vowed to do, or devoting resources to low-level prosecutions that could instead be put toward pursuing bigger targets like gun suppliers.

“It’s a good idea to enforce the existing gun laws,” said Avery Gardiner, co-president of The Brady Campaign, a nonprofit coalition that works to combat gun violence. “That’s something prosecutors should do. But going only after the people who are purchasing the guns illegally is only part of the story.”

Local police, who have for years sought more muscle from federal law enforcement, welcomed Mr. Sessions’s more aggressive approach. “We have been trying to send a message,” said J. Thomas Manger, president of the Major Cities Chiefs Association, which represents police departments across the country. “The bad guys have a real fear of federal prosecutions versus state prosecutions.”

Penalties for federal gun convictions are steep. On average, firearms defendants spend six years in federal prison. If they are convicted under the two statutes requiring mandatory minimum sentences, that average jumps to 11 years.

In the three months following a directive from Mr. Sessions last year to pursue gun crimes, possession cases — a relatively routine charge — rose nearly a quarter. That was part of a 15 percent increase in all federal gun prosecutions in the first nine months of 2017. Three out of every four federal gun charges filed in the 12 months starting in October 2016 were under a statute forbidding felons from owning or transporting a gun, according to Syracuse University’s TRAC database, which monitors gun crime statistics. The period encompasses both the end of the Obama administration and the first several months of Mr. Sessions’s term.

Three law enforcement officials described a newfound interest among prosecutors in taking on smaller gun cases — referred to in law enforcement parlance as one-man, one-gun cases for their narrow impact. Such cases had long been left to state and local prosecutors, freeing Justice Department officials to focus on broader investigations of interstate gun trafficking and criminal networks....

Supporters of Mr. Sessions’s initiatives acknowledge the politics of his approach and remain wary it could be used to sap energy from further legislative or regulatory efforts to combat gun violence, like regulating assault weapons or increasing background check requirements. “We certainly are hoping for some additional legislative fixes by Congress,” Mr. Manger said.

It is difficult to judge the impact of Mr. Sessions’s initiatives. Many offenders charged with federal gun laws in 2017 are just now going to trial or being sentenced, and some of the cases could still be moved out of the federal system. Federal firearm prosecutions have historically ebbed and flowed, often spiking in the years following significant court decisions or large-scale mass shootings. After steadily dropping since 2004, prosecutions began increasing again in 2015, according to the TRAC database.

People convicted of firearms-related crimes make up more than 17 percent of the federal prison population, the second-biggest group after drug offenses, Justice Department data showed. Ninety-six percent of defendants convicted of a federal firearms offense in 2017 were sentenced to prison....

Amid surging public pressure following the mass shooting at a Florida high school in February, Mr. Trump directed Mr. Sessions to more strictly enforce existing gun laws. Survivors of that shooting have pushed Mr. Trump to ban assault weapons and raise the legal purchasing age for firearms. Instead, prodded by Mr. Trump, Mr. Sessions pushed federal prosecutors to more strictly enforce background check violations and ban bump stocks, a device that can help semiautomatic weapons fire like machine guns. Bump stocks were used in the Las Vegas massacre in October.

Mr. Sessions explained his rationale at a speech following the Florida shooting. “It’s not good,” he said, “if we’ve got gun laws that say criminals can’t carry guns and they never get enforced.”

This publication is the third in the Commission’s series on mandatory minimum penalties. Using fiscal year 2016 data, this publication includes analyses of the two statutes carrying a firearms mandatory minimum penalty, 18 U.S.C. § 924(c) (relating to using or possessing firearms in furtherance of drug trafficking or crimes of violence) and the Armed Career Criminal Act, 18 U.S.C. § 924(e), as well as the impact of those provisions on the Federal Bureau of Prisons (BOP) population. Where appropriate, the publication highlights changes and trends since the Commission’s 2011 Mandatory Minimum Report....

Building directly on previous reports and the analyses set forth in the 2017 Overview Publication, this publication examines the use and impact of mandatory minimum penalties for firearms offenses. As part of this analysis, the Commission makes the following key findings:

Firearms mandatory minimum penalties continue to result in long sentences although they have decreased since fiscal year 2010.

In fiscal year 2016, offenders convicted under section 924(c) received an average sentence of over 12 years (151 months) of imprisonment, which is 13 months less than in fiscal year 2010. The average sentence length depended on the applicable mandatory minimum penalty under section 924(c), increasing from 118 months for the five-year mandatory minimum penalty to 302 months where a 30-year mandatory minimum penalty applied.

Similarly, in fiscal year 2016, offenders convicted of an offense carrying the 15-year mandatory minimum penalty under the Armed Career Criminal Act received an average sentence of over 15 years (182 months) of imprisonment, which is nine months less than in fiscal year 2010.

As a result of these long sentences, offenders convicted of an offense carrying a firearms mandatory minimum penalty continued to significantly contribute to the size of the Federal Bureau of Prisons’ population, constituting 24,905 (14.9%) of the 166,771 offenders in federal prison as of September 30, 2016.

Offenders charged with and convicted of multiple counts under section 924(c) received exceptionally long sentences as a result of the statutory requirement that the sentence for each count be served consecutively.

While only 156 (7.9%) of the 1,976 offenders convicted under section 924(c) in fiscal year 2016 were convicted of multiple counts under that statute, they received exceptionally long sentences. The average sentence for offenders convicted of multiple counts under section 924(c) exceeded 27 years of imprisonment (327 months), nearly two-and-a-half times the average sentence for offenders convicted of a single count under section 924(c) (136 months).

The average sentence for offenders who remained subject to the mandatory minimum penalty required by multiple counts under section 924(c) was even longer at almost 36 years (431 months).

In addition, other charging and plea decisions also play a significant role in the application and impact of firearms mandatory minimum penalties.

The majority of section 924(c) offenders (85.5%) were also convicted of another offense, which is consistent with the statutory requirement that an offender must have used or possessed a firearm during and in relation to, or in furtherance of, an underlying federal offense in order to be convicted under section 924(c).

Conversely, 14.5 percent of offenders were convicted of an offense under section 924(c) alone, although those cases necessarily involved another federal offense for which they were not charged and convicted.

Those offenders convicted of an offense under section 924(c) alone received an average sentence that was five years shorter than offenders convicted under section 924(c) and another offense (99 months compared to 159 months).

Statutory relief under 18 U.S.C. § 3553(e) for providing substantial assistance to the government plays a significant role in the application and impact of firearms mandatory minimum penalties.

The 21.6 percent of offenders who received relief from the mandatory minimum penalty under section 924(c) for providing substantial assistance received average sentences of 95 months, compared to 166 months for offenders who remained subject to the mandatory minimum penalty at sentencing.

The impact of receiving relief is even more pronounced for offenders convicted of multiple counts under section 924(c). Such offenders received average sentences that were less than one-third as long as offenders who remained subject to the mandatory minimum penalty required under section 924(c)—136 months compared to 431 months.

Similarly, almost one-fifth (19.7%) of offenders convicted of an offense carrying the mandatory minimum penalty under the Armed Career Criminal Act received relief for providing substantial assistance, and their average sentence was 112 months compared to 200 months for offenders who remained subject to the mandatory minimum penalty at sentencing.

While the rate at which firearms offenders were convicted of an offense carrying a mandatory minimum has been stable, the number of offenders convicted of offenses carrying such penalties has decreased significantly since fiscal year 2010.

Less than one-third (30.8%) of all firearms offenders in fiscal year 2016 were convicted of an offense carrying a mandatory minimum penalty, which is almost identical to fiscal year 2010 (30.6%).

However, between fiscal years 2010 and 2016, the number of offenders convicted under section 924(c) decreased from 2,360 to 1,976, a 16.2 percent decrease. The number of offenders convicted of an offense carrying a mandatory minimum penalty under the Armed Career Criminal Act decreased 51.4 percent from 626 to 304, which is the lowest number of such offenders since fiscal year 2002 (n=292).

Firearms offenses accounted for 16.8 percent of all offenses carrying a mandatory minimum penalty in fiscal year 2016 compared to 14.4 percent in fiscal year 2010.

Firearms mandatory minimum penalties continue to impact Black offenders more than any other racial group.

Black offenders were convicted of a firearms offense carrying a mandatory minimum more often than any other racial group. In fiscal year 2016, Black offenders accounted for 52.6 percent of offenders convicted under section 924(c), followed by Hispanic offenders (29.5%), White offenders (15.7%) and Other Race offenders (2.2%).

The impact on Black offenders was even more pronounced for offenders convicted either of multiple counts under section 924(c) or offenses carrying a mandatory minimum penalty under the Armed Career Criminal Act. Black offenders accounted for more than two-thirds of such offenders (70.5% and 70.4%, respectively).

Black offenders also generally received longer average sentences for firearms offenses carrying a mandatory minimum penalty than any other racial group. In fiscal year 2016, Black offenders convicted under section 924(c) received an average sentence of 165 months, compared to 140 months for White offenders and 130 months for Hispanic offenders. Only Other Race offenders received longer average sentences (170 months), but they accounted for only 2.2 percent of section 924(c) offenders.

Similarly, Black offenders convicted of an offense carrying a mandatory minimum penalty under the Armed Career Criminal Act received longer average sentences than any other racial group at 185 months, compared to 178 months for White offenders, 173 months for Hispanic offenders, and 147 months for Other Race offenders.

Monday, November 20, 2017

"Gun theft from legal owners is on the rise, quietly fueling violent crime across America"

The title of this post is the title of this notable new article from The Trace. I recommend the piece in full, and here is how it gets started, along with some of the reported data:

American gun owners, preoccupied with self-defense, are inadvertently arming the very criminals they fear.

Hundreds of thousands of firearms stolen from the homes and vehicles of legal owners are flowing each year into underground markets, and the numbers are rising. Those weapons often end up in the hands of people prohibited from possessing guns. Many are later used to injure and kill.

A yearlong investigation by The Trace and more than a dozen NBC TV stations identified more than 23,000 stolen firearms recovered by police between 2010 and 2016 — the vast majority connected with crimes. That tally, based on an analysis of police records from hundreds of jurisdictions, includes more than 1,500 carjackings and kidnappings, armed robberies at stores and banks, sexual assaults and murders, and other violent acts committed in cities from coast to coast.

“The impact of gun theft is quite clear,” said Frank Occhipinti, deputy chief of the firearms operations division for the Bureau of Alcohol, Tobacco, Firearms and Explosives. “It is devastating our communities.”

Thefts from gun stores have commanded much of the media and legislative attention in recent years, spurred by stories about burglars ramming cars through storefronts and carting away duffel bags full of rifles and handguns. But the great majority of guns stolen each year in the United States are taken from everyday owners. Thieves stole guns from people’s closets and off their coffee tables, police records show. They crawled into unlocked cars and lifted them off seats and out of center consoles. They snatched some right out of the hands of their owners....

In most cases reviewed in detail by the Trace and NBC, the person caught with the weapon was a felon, a juvenile, or was otherwise prohibited under federal or state laws from possessing firearms.

More than 237,000 guns were reported stolen in the United States in 2016, according to previously unreported numbers supplied by the National Crime Information Center, a database maintained by the Federal Bureau of Investigation that helps law enforcement track stolen property. That represents a 68 percent increase from 2005. (When asked if the increase could be partially attributed to a growing number of law enforcement agencies reporting stolen guns, an NCIC spokesperson said only that “participation varies.”)

All told, NCIC records show that nearly two million weapons have been reported stolen over the last decade.

The government’s tally, however, likely represents a significant undercount. A report by the Center for American Progress, a left-leaning public policy group, found that a significant percentage of gun thefts are never reported to police. In addition, many gun owners who report thefts do not know the serial numbers on their firearms, data required to input weapons into the NCIC. Studies based on surveys of gun owners estimate that the actual number of firearms stolen each year surpasses 350,000, or more than 3.5 million over a 10-year period.

“There are more guns stolen every year than there are violent crimes committed with firearms,” said Larry Keane, senior vice president of the National Shooting Sports Foundation, the trade group that represents firearms manufacturers. “Gun owners should be aware of the issue.”

Monday, October 02, 2017

Anyone have any wise insights after latest and worst US mass shooting?

I am soon to go off-line to prepare and then teach my 1L Criminal Law class in which we are starting an in-depth discussion of homicide laws. In the wake of horrific events in Las Vegas, which according to the latest reports, involved a gunman's murder of "at least 58 people" and hundreds more injured, I am eager to say something wise to my students before we get started with our regular programming. But I am not sure I have much wisdom on this front.

As some long-time readers may recall, after some recent past mass shooting, especially Sandy Hook, I talked up the possibility of smart gun technologies being at least a partial plausible "solution" to mass shootings and extensive gun violence. (A bunch of those prior posts are linked below.) But I am not sure such technology could have made any difference in this latest evil killing, and I am sure that the failure of the Obama Administration or progressive states to make any progress on the smart gun front in recent years likely signals that it would be foolish to hope or expect a technological remedy to our massive gun violence problem.

Notably, Nicholas Kristof already has this op-ed up at the New York Times headlined "Preventing Future Mass Shootings Like Las Vegas." Here are some of his closing sentiments, which strike me as thoughtful, if not quite wise:

It’s too soon to know what, if anything, might have prevented the shooting in Las Vegas, and it may be that nothing could have prevented it. In some ways, these mass shootings are anomalies: Most gun deaths occur in ones or twos, usually with handguns (which kill far more people than assault rifles), and suicides outnumber murders.

But in every other sphere, we at least use safety regulations to try — however imperfectly — to reduce death and injury. For example, the Occupational Safety and Health Administration has seven pages of rules about ladders, which kill 300 people a year. Yet the federal government doesn’t make a serious effort to reduce gun deaths, with a toll more than 100 times as high.

The best example of intelligent regulation is auto safety. By my calculations, we’ve reduced the auto fatality rate per 100 million miles driven by more than 95 percent since 1921. There was no single solution but rather many incremental efforts: seatbelts, air bags, padded dashboards, better bumpers, lighted roads, highway guardrails, graduated licenses for young people, crackdowns on drunken driving, limits on left turns, and so on. We haven’t banned automobiles, and we haven’t eliminated auto deaths, but we have learned to make them safer — and we should do the same with guns.

The analogy between driving/cars and guns does not quite work for a variety of reasons, but there is surely a kind of wisdom in the idea that we can and should try to improve gun safety in a variety of incremental ways without the political and practical problems posed by proposals involving prohibitions. And, perhaps ironically, Prez Donald Trump may be better positioned than any recent president to navigate the challenging gun politics that often impeded efforts to improve gun safety. Though I have little reason to believe Prez Trump will be eager to make improving gun safety a political priority, not long ago I had little reason to believe that there would ever be a Prez Trump.

Friday, September 08, 2017

Highlighting through St. Louis the enduring challenges of battling city crime with federal emphasis

Mark Obbie has this terrific lengthy new piece in Politico Magazine with full headline that captures its key themes: "Why Jeff Sessions’ Recycled Crime-Fighting Strategy Is Doomed to Fail: Funneling more gun criminals into federal prison won't reduce homicides. Just look at St. Louis." The article merits a full read, and here are its opening passages:

Newly minted Attorney General Jeff Sessions was in St. Louis, the latest stop on his tour to promote his muscular solution to what he called the “dangerous new trend” of the rising national violent crime rate. Addressing a crowd of more than 200 federal and local law enforcement officials at the city’s towering federal courthouse in late March, he vowed to “use every lawful tool we have to get the most dangerous offenders off America’s streets.”

The Trump Justice Department has pushed a variety of strategies for reducing violent crime. But the tool that Sessions prefers, the one he calls the “excellent model,” is to steer more gun-crime cases to federal court, where offenders face an average of six years in prison, compared with the lighter punishments that can result from state convictions — in Missouri, for instance, gun offenders charged under state laws generally get probation. Sessions has instructed his U.S. attorneys to step up their gun-case loads, and they are heeding his mandate: In the second quarter of this year, federal firearms prosecutions jumped 23 percent over the same period in 2016.

In his St. Louis speech, Sessions praised the city’s U.S. attorney’s office for its aggressive pursuit of gun-law violators, framing its work as the first half of a tidy formula. “The more of them we put in jail,” he said, “the fewer murders we will have.”

But Sessions is dramatically overselling the effectiveness of his prosecution-heavy prescription, those who study gun violence say. Researchers, in fact, long ago concluded that the long prison sentences and elevated incarceration rates that result from increasing federal prosecutions have scant influence on violent crime rates. And St. Louis is a signal example of why Sessions’ strategy does not work as he promises.

No other city has already tried harder and longer to do exactly what Sessions is pushing for nationwide. Since the 1990s, the St. Louis-based Eastern District of Missouri has remained in the top 10 federal court districts for per capita gun prosecution rates, according to data from Syracuse University’s Transactional Records Access Clearinghouse (TRAC). In more recent years, the St. Louis office has only increased its intake of gun cases, leading the nation in 2016.

At the same time, St. Louis’ rates of homicide and serious crimes of all types are the worst in the country, and have been stuck at or near the top of that dubious list for at least 20 years. The city recorded 188 homicides in each of the past two years — a two-decade high. During the first six months of 2017, murders kept pace with those brutal levels. Nonfatal shootings were up an alarming 22 percent.

If St. Louis shows why Sessions’ approach to gun violence is destined to fail, what is a more effective role for federal authorities to play in reducing violent crime? Public safety scholars say that it starts with recognizing that no two cities’ crime problems are exactly alike. The next step is to create a menu of interventions tailored to meet local needs — and support them with reliable funding.

Sunday, July 30, 2017

Should an uptick in federal gun prosecutions garner bipartisan praise?

The question in the title of this post was my first thought upon seeing this press release from the Justice Department released Friday under the heading "Federal Gun Prosecutions Up 23 Percent After Sessions Memo." Here is the full text of the press release:

Today, the U.S. Department of Justice announced that, following the memorandum from Attorney General Sessions to prioritize firearm prosecutions, the number of defendants charged with unlawful possession of a firearm increased nearly 23 percent in the second quarter of 2017 (2,637) from the same time period in 2016 (2,149).

“Violent crime is on the rise in many parts of this country, with 27 of our biggest 35 cities in the country coping with rising homicide rates,” said Attorney General Jeff Sessions. “Law abiding people in some of these communities are living in fear, as they see families torn apart and young lives cut short by gangs and drug traffickers. Following President Trump’s Executive Order to focus on reducing crime, I directed federal prosecutors to prioritize taking illegal guns off of our streets, and as a result, we are now prosecuting hundreds more firearms defendants. In the first three months since the memo went into effect, charges of unlawful possession of a gun -- mostly by previously convicted felons -- are up by 23 percent. That sends a clear message to criminals all over this country that if you carry a gun illegally, you will be held accountable. I am grateful to the many federal prosecutors and agents who are working hard every day to make America safe again.”

In February, immediately after the swearing-in of Attorney General Jeff Sessions, President Trump signed an Executive Order that directs the Attorney General to seek to reduce crime and to set up the Task Force on Crime Reduction and Public Safety. The Task Force has provided Sessions with recommendations on a rolling basis. In March, based on these recommendations, Attorney General Sessions sent a memorandum to Department of Justice prosecutors, ordering them to prioritize firearms offenses.

In the three months immediately following the Attorney General’s memo -- April, May and June -- the number of defendants charged with unlawful possession of a firearm (18 U.S.C. 922) increased by nearly 23 percent compared to those charged over the same time period in 2016. The number of defendants charged with the crime of using a firearm in a crime of violence or drug trafficking (18 U.S.C. 924), increased by 10 percent.

Based on data from the Executive Office for United States Attorneys (EOUSA), in Fiscal Year 2016 (starting October 1), 11,656 defendants were charged with firearms offenses under 18 U.S.C. 922 or 924. EOUSA projects that in Fiscal Year 2017, the Department is on pace to charge 12,626 defendants with these firearms crimes. That would be the most federal firearms cases since 2005. It would also be an increase of eight percent from Fiscal Year 2016, 20 percent from 2015, and an increase of 23 percent from 2014.

Of course, as regular readers on this blog know well, many on the political left have been critical of various efforts by AG Sessions to ramp up federal prosecutions. But much of the criticism is based on concerns about escalating the federal drug war, especially as it applies to lower-lever and nonviolent offenders. As the title of this post is meant to suggest, perhaps this latest data showing a ramp up of gun prosecutions could be met with some applause from political left given the tendency of the left to support tougher restrictions on gun possession. (Of course, some parts of the libertarian-faction of the political right has also expressed concerns about recent work by AG Sessions, and they might be more troubled by these data.)

Critically, without having more information about the "who and how" of increased federal gun prosecutions, I do not feel sufficiently informed to robustly praise or criticize these developments. But I do think it interesting and notably that the first new data being stressed by the Sessions DOJ involves a type of prosecution that could garner support from both sides of the political aisle.

Friday, June 30, 2017

Chicago now an even more fascinating study in federal criminal enforcement and gun crimes

The title of this post is my reaction to this new press release from the Department of Justice titled "Attorney General Jeff Sessions: We Cannot Accept these Levels of Violence in Chicago." Here is how it starts and ends:

Today Attorney General Jeff Sessions issued the following statement on the unacceptable violence plaguing the City of Chicago and outlined steps that the Department of Justice is taking to increase public safety:

"No child in America should have to walk the streets of their neighborhood in fear of violent criminals, and yet in Chicago, thousands of children do every day. Last year, more than 4,300 Chicagoans were shot, and more than 700 were killed — the deadliest year in two decades.”

“The Trump Administration will not let the bloodshed go on; we cannot accept these levels of violence. That's why, under President Trump's strong leadership, we have created the Chicago Gun Strike Force and are sending 20 more permanent ATF agents to Chicago, reallocating federal prosecutors and prioritizing prosecutions to reduce gun violence, and working with our law enforcement partners to stop the lawlessness.”...

The Crime Gun Strike Force, a permanent team of special agents, task force officers, intelligence research specialists, and ATF Industry Operations investigators who are focused on the most violent offenders, in the areas of the city with the highest concentration of firearm violence.

I have noted in lots of posts in recent years how remarkable it is that the largest city in the US (New York) keeps having crime declines while the third largest city (Chicago) is struggling with increased crime. This pattern has been in place for at least a half-decade (see this 2012 post), and I sure hope this new Chicago Gun Strike Force can help matters in Chicago.

Thursday, June 08, 2017

A helpful reader forwarded to me the latest interesting sentencing opinion authored by US District Judge Jack Weinstein. The full 25-page opinion in US v. Lawrence, No. 16-CR-243 (E.D.N.Y. May 23, 2017), is an interesting read for a lot of reasons, is not readily summarized and is available for download below. Here is how it gets started and ends to provide taste for the full opinion:

Defendant in the instant case pled guilty to a serious crime. He is either a gang member or on the verge of becoming one. He recklessly fired an illegally possessed handgun repeatedly down a public street, with the likelihood that a passing pedestrian might be hit: in fact he wounded his companion.

This case presents some of the critical difficulties in federal sentencing. It requires balancing general deterrence (and, relatedly, incapacitation) by a relatively long prison term with specific deterrence (and its other aspect, rehabilitation) by a relatively short term in prison. Both must be considered under section 3553(a)(2)(B) of section [1]8 of the United States Code. By compromising, and reducing a somewhat draconian sentence (possibly less effective for general deterrence), or increasing the sentence (possibly less effective for rehabilitation), the sentence may risk frustrating either goal.

The subtle weighing of alternatives is made more difficult by the presence of numerous competing vectors (such as family or work or criminal history). In the present case the court accepted, and acted on, testimony of an expert witness that increasing the length of incarceration does not proportionally increase general or specific deterrence....

The Guidelines do not consider gang membership as a factor in sentencing, except for defendants who are sentenced under 18 U.S.C. § 521 (pertaining to criminal street gangs), where the Guidelines provide for an upward departure. U.S.S.G. § 5K2.18. Were gang membership a sentencing factor in cases other than those under 18 U.S.C. § 521, courts would give greater weight to this factor. This court recommends that the Sentencing commission revisit the gang membership problem.

Tuesday, April 04, 2017

How many prior sentenced federal prisoners might now have "Dean claims" (assuming Dean is retroactive)?

As reported in this post from yesterday, and as explained a bit more via this write-up I provided to the fine folks at SCOTUSblog, the Supreme Court yesterday in Dean v. United States, No. 15-9260 (April 3, 2017) (available here) ruled that the Eighth Circuit had been wrong to hold that, "in calculating the sentence for [a] predicate offense, a judge must ignore the fact that the defendant will serve the mandatory minimums imposed under §924(c)." According to the government's briefing in Dean, most of the circuits had also ruled like the Eighth Circuit (incorrectly) on this statutory sentencing issue — though I suspect that, in practice, a number of district courts did not consistently ignore 924(c) mandates when sentencing predicate offenses.

Given this background, I was surprised I did not think of the question in the title of this post until former AUSA Steven Sanders sent me an email with this query: "Any thoughts on whether Dean applies retroactively on 2255, on the (Montgomery) theory that the decision opens up the range of punishment and thus is substantive for Teague purposes?" Regular readers familiar with my views about finality rules and sentencing errors (basics here, law review article here) should expect me to have plenty of thoughts about Dean retroactivity, most of which center around the view that Dean qualifies as retroactive. Put simply, Dean seems to me to be a substantive ruling that applies retroactively.

Assuming Dean is retroactive, this recent "Quick Facts" publication from the US Sentencing Commission suggests there could be thousands (perhaps even tens of thousands) of federal prisoners with plausible Dean claims. Specifically, that publication indicates that, in Fiscal Year 2015, over 1100 federal defendants were convicted under both section 924(c) and another predicate offense not carrying a mandatory minimum, and that the average sentence for this group was over 11 years in prison. Assuming 2015 was a fairly representative year — and the USSC publication actually suggests a larger number of defendants getting longer sentences in prior years — it is possible that well over 10,000 defendants (and maybe many more) could be in federal prison serving sentences that were imposed based on an understanding of applicable sentencing principles that Dean has now disrupted.

For various procedural and practical reasons, I doubt we will see thousands of "Dean resentencings" in the federal courts in the coming months even if thousands of prisoners got sentenced based on the wrong understanding of the applicable laws here. But I do expect that there will be many more than just a handful or "Dean resentencing" efforts.

Wednesday, March 15, 2017

AG Sessions talks again about "the challenge of violent crime and drugs" and about support for law enforcement

The Department of Justice now has posted here an extended speech delivered by Attorney General Jeff Sessions today in Richmond, Virginia (which just happens to be where I am headed tomorrow for a faculty workshop). Those who have been following what AG Sessions has been saying in recent months (and really throughout his whole career) will likely not find anything all that new or surprising in this latest speech. Nevertheless, I still found the entire speech and especially the following passages worth flagging in this space. And I have highlight two particular sentences in the discussion of drugs that I have not previously seen and that could and perhaps should capture a lot of attention:

First, we should keep in mind some context. Overall, crime rates in our country remain near historic lows. Murder rates are half of what they were in 1980. The rate of violent crime has fallen by almost half from its peak.... In the past four decades, we have won great victories against crime in America. This happened under leadership from both political parties, and thanks above all to the work of prosecutors and good police using data-driven methods and professional training. Hundreds of thousands of Americans are alive today as a result.

But in the last two years, we’ve seen warning signs that this progress is now at risk. The latest FBI data tell us that from 2014 to 2015, the violent crime rate in the U.S. increased by more than 3 percent — the largest one-year increase since 1991. The murder rate increased 10 percent — the largest increase since 1968. And all of this is taking place amid an unprecedented epidemic of heroin and opioid abuse....

My fear is that this surge in violent crime is not a “blip,” but the start of a dangerous new trend. I worry that we risk losing the hard-won gains that have made America a safer and more prosperous place. While we can hope for the best, we can’t afford to be complacent. When crime rates move in the wrong direction, they can move quickly....

Last month the President gave us clear direction, issuing three executive orders that direct the federal government to reduce crime and restore public safety. This task will be a top priority of the Department of Justice during my time as Attorney General. I’d like to talk briefly about how we’re tackling this challenge.

First, we’re making sure the federal government focuses our resources and efforts on this surge in violent crime. Two weeks ago, I announced the formation of a Department of Justice Task Force on Crime Reduction and Public Safety. It includes crime reduction experts from throughout the Department of Justice, including the heads of the FBI, the ATF, the DEA and the U.S. Marshals Service. The task force will evaluate everything we are doing at the federal level.

Second: We need to use every lawful tool we have to get the most violent offenders off our streets. In recent years, we have seen a significant shift in the priority given to prosecuting firearms offenders at the federal level. This trend will end. This Department of Justice will systematically prosecute criminals who use guns in committing crimes....

Third: To turn back this rising tide of violent crime, we need to confront the heroin and opioid crisis in our nation — and dismantle the transnational cartels that bring drugs and violence into our neighborhoods.

Our nation is in the throes of a heroin and opioid epidemic. Overdose deaths more than tripled between 2010 and 2014. According to the CDC, about 140 Americans on average now die from a drug overdose each day. That means every three weeks, we are losing as many American lives to drug overdoses as we lost in the 9/11 attacks. Illegal drugs are flooding across our southern border and into cities across our country, bringing violence, addiction, and misery. We have also seen an increase in the trafficking of new, low-cost heroin by Mexican drug cartels working with local street gangs. As the market for this heroin expands, gangs fight for territory and new customers and neighborhoods are caught in the crossfire.

There are three main ways to fight the scourge of drugs: criminal enforcement, treatment and prevention. Criminal enforcement is essential to stop both the transnational cartels that ship drugs into our country, and the thugs and gangs who use violence and extortion to move their product. One of the President’s executive orders directed the Justice Department to dismantle these organizations and gangs — and we will do just that.

Treatment programs are also vital. But treatment often comes too late to save people from addiction or death. So we need to focus on the third way we can fight drug use: preventing people from ever taking drugs in the first place.

I realize this may be an unfashionable belief in a time of growing tolerance of drug use. But too many lives are at stake to worry about being fashionable. I reject the idea that America will be a better place if marijuana is sold in every corner store. And I am astonished to hear people suggest that we can solve our heroin crisis by legalizing marijuana — so people can trade one life-wrecking dependency for another that’s only slightly less awful. Our nation needs to say clearly once again that using drugs will destroy your life.

In the ’80s and ’90s, we saw how campaigns stressing prevention brought down drug use and addiction. We can do this again. Educating people and telling them the terrible truth about drugs and addiction will result in better choices. We can reduce the use of drugs, save lives and turn back the surge in crime that inevitably follows in the wake of increased drug abuse.

Finally: The federal government alone cannot meet the challenge of violent crime and drugs — so we need to protect and support our brave men and women in law enforcement. About 85 percent of all law enforcement officers in our nation are not federal, but state and local. These are the men and women on the front lines — the ones doing most of the tough and often dangerous work that keeps our neighborhoods safe....

The new challenge of violent crime in our nation is real — and the task that lies before us is clear. We need to resist the temptation to ignore or downplay this crisis. Instead, we must tackle it head-on, to ensure justice and safety for all Americans. We will enforce our laws and put bad men behind bars. We will fight the scourge of drug abuse. And we will support the brave men and women of law enforcement, as they work day and night to protect us. Together, let us act to meet this challenge, so that our children will not look back and say that we let slip from our grasp all we had done to make America a safer place.

I find it quite interesting and significant that AG Sessions, in the first sentence highlighted above, has highlighted the severity of the current US drug problem in term of the number of deaths caused by the worst and deadliest terrorist attack in US history. The decision to frame the problem in these terms reveals just how seriously the Attorney General sees the problem, and I am in some sense inclined to respect and applaud this framing in part because I fear a lot of people who have not been directly touched by the modern opioid epidemic do not fully appreciate how many lives are being lost to it.

Ironically, though, the kind of wise intensity I see reflected in the first sentence highlighted above is undercut but what strikes me as a misguided intensity reflected in the second sentence highlighted above. Because tens of thousands of individuals are dying for opioid overdoses and nobody dies from a marijuana overdoes, it make a whole lot of sense to me that a whole lot of people would see a whole lot of value in encouraging people to trade an opioid dependency for a marijuana dependency. (And this simple analysis, of course, leaves out the statistically reality that the vast majority of people who use marijuana do not become dependent on it.)

Sunday, March 05, 2017

Deep dive into litigation over Chicago “Stash House Stings”

Because the President of the United States has often expressed concerning about crime in Chicago and has tweeted about sending in the feds, I hope the Prez and his advisers find time to check out this recent lengthy Chicago Tribune article about some of the work of the feds in this city in the recent past. The article, headlined "ATF sting operation accused of using racial bias in finding targets, with majority being minorities," merits a full read, and here is an extended taste:

For four years, Mayfield had been struggling to turn his life around after more than a decade in prison. To escape the street life, he moved to Naperville with his fiancee's family and managed to find a full-time job at a suburban electronics facility that paid 12 bucks an hour. It was there that a co-worker lured him into the robbery after weeks of effort, promising a big score.

Now, inside the police vehicle, the sounds of flash-bang grenades still ringing in his ears, Mayfield started to piece it all together. There was no stash house, no cartel drugs or associates to rob. It was a crime dreamed up by federal authorities and carried out with the help of Mayfield's co-worker to reel him in when he was at his most vulnerable.

Eight years later, Mayfield, 48, and dozens of others are at the center of a brewing legal battle in Chicago's federal court over whether the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives' signature sting operation used racial bias in finding its many targets.

A team of lawyers led by the University of Chicago Law School is seeking to dismiss charges against more than 40 defendants in Chicago. The undercover probes, a staple of the ATF since the mid-1990s, have ensnared hundreds of defendants across the country. A recently unsealed study by a nationally renowned expert concluded that ATF showed a clear pattern of racial bias in picking its targets for the drug stings. The disparity between minority and white defendants was so large that there was "a zero percent likelihood" it happened by chance, the study found.

The vast majority of those swept up in the stings in Chicago were minorities, and a close examination of the criminal backgrounds of some of those targeted raises questions about whether they were truly the most dangerous gun offenders whom ATF was aiming to remove from the street.

Some had trouble even coming up with guns to do the job — including one crew that after months of preparation managed to find only one World War I-era pistol with a broken handle that could barely fire a round. Others had no history of carrying out high-risk armed robberies — a key provision in the ATF playbook designed to make sure targets were legitimate, defense lawyers argued in recent court filings....

Earlier this month, federal prosecutors filed a lengthy motion vehemently disputing that minorities were unfairly targeted in the stash house cases, saying the expert report filed by the defense was "riddled with false assumptions that were designed to manufacture a racial disparity where none exists." The dispute sets up what could be an unprecedented hearing at the Dirksen U.S. Courthouse in the coming months involving a panel of district judges hearing the multiple criminal cases at once.

"It's almost like a criminal class action," said Alison Siegler, director of the Federal Criminal Justice Clinic at the University of Chicago Law School, which represents most of the defendants in the dozen cases they are seeking to be dismissed. "Judges are seeing this as a coordinated litigation. It's a very unusual situation."...

According to the ATF, stash house stings are a key part of the agency's national effort to target people who "show a propensity of doing harm to the public through violent behavior." Launched in Miami during the cocaine-war days of the early 1990s, the stings have been honed over the years and are run by experienced agents who use a tightly controlled playbook.

They typically begin when an informant provides the ATF information about a potential target who has expressed interest in taking part in a robbery. The informant then introduces the target to an undercover agent who poses as a disgruntled courier for a drug cartel and offers an opportunity to steal large quantities of drugs from a stash house guarded by men with guns.

In a series of conversations captured on undercover wire, the target is told if he is interested he must assemble an armed team to commit the robbery. The target and his crew are arrested after they show up on the day of the supposed crime. "At the time of arrest, the home invasion defendants are poised, at any moment, to invade a stash house, steal kilograms of cocaine guarded by armed cartel members, and in the process, kill or be killed," prosecutors wrote in their recent court filing.

In order to avoid arguments of entrapment in court, the stings are supposed to target only established robbery groups. ATF criteria also require that at least two of the participants have violent backgrounds and that all must be criminally active at the time the investigation is launched. Not only were the operations a boon for the ATF but the resulting prosecutions also netted eye-popping sentences — sometimes up to life in prison — in part because defendants were criminally liable for the amount of imaginary drugs they believed they were stealing. It didn't matter that the robbery was fake or that no drugs actually existed....

The lengthy sentences were just one pattern that raised red flags for the criminal defense bar. In case after case, the ATF stings seemed to be targeting only minorities. In early 2013, a handful of private attorneys and assistant federal defenders, all veterans at the Dirksen U.S. Courthouse, were so troubled by a stash house case they were defending that they asked the U.S. attorney's office for a complete list of all the defendants in similar cases sorted by race. Prosecutors rebuffed this admittedly unorthodox request. "ATF does not maintain statistics on the nature in question at either the local or national level," Assistant U.S. Attorney Philip Fluhr wrote in response, court records show.

The defense lawyers then asked the judge overseeing the case to order prosecutors to turn over detailed information on how the stash house stings are run and the race of the defendants who had been charged so far. They included their own research showing more minorities were targeted. Prosecutors strenuously objected. But a few months later, U.S. District Chief Judge Ruben Castillo allowed the discovery to go forward. "History has shown a continuing difficult intersection between the issue of race and the enforcement of our nation's criminal laws," wrote Castillo, concluding that the defense team had "made a strong showing of potential bias."

Similar motions in other stash house cases soon followed, but the effort to prove racial bias was being made case-by-case with no coordination. Then in 2014, the University of Chicago's Federal Criminal Justice Clinic agreed to focus all its efforts on the 12 stash house cases and their 43 defendants. This allowed the defense attorneys to address the alleged racial bias in a coordinated effort, a critical undertaking given the government's massive resources, the attorneys said....

As the movement to fight the stash house cases gathered steam among defense attorneys, the judiciary also weighed in with some key decisions. In November 2014, the full 7th Circuit U.S. Court of Appeals granted Mayfield a new trial in a rare decision that concluded Potts had "targeted Mayfield at a moment of acute financial need and against a backdrop of prolonged difficulty finding permanent, family-supporting work."

In a 2012 dissenting opinion as the case was winding through the court, appellate Judge Richard Posner had put an even finer point on it, referring to the stings as a "disreputable tactic" that used government informants to target people at a vulnerable time in their lives. Meanwhile, another ruling in July 2015 by the appellate court in Chicago resulted in the government turning over more data on the stash house stings sought by the defense. The ruling allowed the defendants to move ahead with what is believed to be the most thorough analysis of the stings anywhere in the country....

The debate is now potentially headed for a court hearing involving all defendants. The outcome could set precedent for judges in other states. "Courts tend to give law enforcement a lot of leeway," said University of California-Irvine law professor Katharine Tinto, a criminal law expert who has written extensively about the stash house stings. "… The fact that an expert is saying a federal law enforcement agency is discriminating on the basis of race is something everybody should be watching."

Tuesday, February 28, 2017

Telling comments about violent crime from AG Sessions in speech to NAAG

Attorney General Jeff Sessions gave this lengthy speech at the winter meeting of the National Association of Attorneys General (NAAG). The speech is focused on what AG Sessions calls a "disturbing rise in violent crime in our nation," and the full speech should be read by any and everyone eager to get a sense for the perspectives and thinking of our new Attorney General. Here are some passages that especially caught my attention:

First, let’s put things in context. Overall, crime rates in the United States remain near historic lows. Murder rates are half of what they were in 1980. The rate of violent crime has fallen by almost half from its peak in the early 1990s. Many neighborhoods that were once in the grip of gangs and drugs and violence are now vibrant places, where kids can play in the park and parents can enjoy a walk after sunset without fear. There is no doubt that in the past four decades — under leadership from both political parties, and thanks above all to the work of prosecutors and good police using science and professional training — we have won great victories against crime in America. Hundreds of thousands of Americans are alive today as a result.

But in the last two years, we’ve seen clear warning signs — like the first gusts of wind before a summer storm — that this progress is now at risk. The latest FBI official data tell us that from 2014 to 2015, the violent crime rate in the U.S. increased by more than 3 percent — the largest one-year increase since 1991. The murder rate increased 11 percent — the largest increase since 1968. The rape rate increased by over 4 percent, and the aggravated assault rate rose by nearly 4 percent.

If this was a one-year spike, we might not worry too much. But the preliminary data for the first half of 2016 confirmed these trends. The number of violent crimes in the first half of last year was more than 5 percent higher than the same period in 2015. The number of murders was also up 5 percent over the same period the year before, and aggravated assaults rose as well.

Just last week, the Wall Street Journal reported that since 2014, the murder rate in 27 of our country’s 35 largest cities has gone up. Homicide rates in Chicago, Baltimore, Milwaukee and Memphis have returned to levels not seen in two decades. Last year, Chicago had more than 4,000 shooting victims and 762 murders, and Baltimore’s murder rate was its second-highest ever.

These numbers should trouble all of us. My worry is that this is not a “blip” or an anomaly, but the start of a dangerous new trend that could reverse the hard-won gains of the past four decades — gains that made America a safer and more prosperous place....

While this spike in violent crime is not happening in every neighborhood or city, the trends should concern all of us. It is a basic civil right to be safe in your home and your neighborhood. We are diminished as a nation when any of our citizens fears for their life when they leave their home; or when terrified parents put their children to sleep in bathtubs to keep them safe from stray bullets; or when entire neighborhoods are at the mercy of drugs dealers, gangs and other violent criminals.

So we need to act decisively at all levels — federal, state and local — to reverse this rise in violent crime and keep our citizens safe. This will be a top priority of the Department of Justice during my time as Attorney General.

We know the first step in fixing something is recognizing you have a problem. For anyone who still doubts that today’s rise in violent crime is real and significant, I’ve done my best here to make that case. And I’m not alone, because police chiefs and sheriffs and mayors across our country are saying the same thing.

Once we recognize the problem, we need to examine the causes and take action. It’s still early, but people with long experience in law enforcement and crime research are beginning to draw some conclusions.

We know that our nation is in the throes of a heroin epidemic, with overdose deaths more than tripling between 2010 and 2014. Meanwhile, illegal drugs flood across our southern border and into cities and towns across our country, bringing violence, addiction and misery. In particular, we’ve seen an increase in the trafficking of new, low-cost heroin by Mexican drug cartels working with local street gangs. As the market for this heroin expands, gangs fight for territory and new customers and neighborhoods are caught in the crossfire.

In recent years, we’ve also seen a significant shift in the priority given to prosecuting gun and drug offenders at the federal level. While numbers don’t tell the whole story, I still find the following statistics troubling: at the end of 2015 there were more than 7 percent fewer federal gun prosecutions than five years before. In that same five-year period, federal drug prosecutions declined by 18 percent.

Under my leadership at the Department of Justice, this trend will end. Our agents and prosecutors will prioritize cases against the most violent offenders, and remove them from our streets so they can no longer do us harm.

We’ve also heard from law enforcement leaders, including the FBI Director and many police chiefs, that something is changing in policing. They tell us that in this age of viral videos and targeted killings of police, many of our men and women in law enforcement are becoming more cautious. They’re more reluctant to get out of their squad cars and do the hard but necessary work of up-close policing that builds trust and prevents violent crime.

This is a terrible place to be, because we know that tough and effective law enforcement can make a real difference. It can reduce crime and save lives. We’ve seen it happen in our country over the past four decades — and many of you in this room have been part of this noble work.

The immense social costs of crime are indisputable. Yes, incarceration is painful for the families of inmates, and every conviction represents a failure on multiple levels of society. But the costs of rising crime are even more severe. Drug crimes and violent felonies change the lives of victims forever. Neighborhoods hit by rising crime suffer deep economic harm. And if more young men choose to commit crimes because jail time is less daunting than before, that means they are forgoing more hopeful courses for their lives and their communities. In the midst of a terrible heroin epidemic and a rise in violent crime, we should not roll back the tools law enforcement has to go after federal drug trafficking and firearms felons, or release thousands more.

The federal government has a key role to play in addressing this crisis. I pledge that under my leadership at the Department of Justice, we will systematically prosecute criminals who use guns in committing crimes. We will work to take down drug trafficking cartels and dismantle gangs. And we will enforce our immigration laws and prosecute those who repeatedly violate our borders.

I also pledge to listen to the stories and concerns of those who are most affected by this rise in violent crime. Over the coming months I plan to travel around the country, from border towns to big cities, to talk with and learn from our law enforcement partners, crime victims, community leaders and others.

Earlier this month, the President also gave us clear direction. He signed three executive orders aimed at reducing crime and restoring public safety, protecting our law enforcement personnel, and dismantling the transnational cartels that are bringing drugs and violence into our neighborhoods.

To carry out the first of those orders, today I’m announcing the formation of a Department of Justice Task Force on Crime Reduction and Public Safety.

The Deputy Attorney General will chair the task force, which will include crime reduction experts throughout the Department of Justice, including the heads of the FBI, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), the Drug Enforcement Administration (DEA) and the U.S. Marshals Service. The task force will evaluate everything we are doing. It will look at deficiencies in our current laws that have made them less effective in reducing crime, and propose new legislation. It will make sure we’re collecting good crime data, and think of ways to improve that data so we can all better understand crime trends. We will insist that every agent and prosecutor is deployed effectively, fully supported and highly productive. Finally, the task force will consult with our partners in law enforcement at all levels, as well as law enforcement organizations, victims’ groups and community groups....

Unfortunately, in recent years law enforcement as a whole has been unfairly maligned and blamed for the unacceptable deeds of a few bad actors. Our officers, deputies and troopers believe the political leadership of this country abandoned them. Their morale has suffered. And last year, amid this intense public scrutiny and criticism, the number of police officers killed in the line of duty increased 10 percent over the year before. To confront the challenge of rising crime, we must rely heavily on local law enforcement to lead the way — and they must know they have our steadfast support.

For the federal government, that means this: rather than dictating to local police how to do their jobs — or spending scarce federal resources to sue them in court — we should use our money, research and expertise to help them figure out what is happening and determine the best ways to fight crime. We should strengthen partnerships between federal and state and local officers. And we should encourage proactive policing that ensures our police and citizens are communicating and working well together.

The new challenge of violent crime in our nation is real — and the task that lies before us is clear. As President Reagan used to say, there are no easy answers, but there are simple ones; we only need the courage to do what is right. We need to resist the temptation to ignore or downplay this crisis and instead tackle it head-on, to ensure justice and safety for all Americans. We need to enforce our laws and put bad men behind bars. And we need to support the brave men and women of law enforcement as they work day and night to protect us.

Thursday, February 16, 2017

Notable accounting of what Mayor Emanuel sought from AG Sessions to deal with Chicago's gun violence

This local article, headlined "Emanuel used meeting with Sessions to get specific on fed help," reports on the requests Chicago's mayor made to the new Attorney General to help combat violence in a city that has been a frequent talking point about violent crime for Prez Trump. Here is how the article starts:

Attempting to turn President Donald Trump’s talk into federal action, Mayor Rahm Emanuel said Tuesday he used his first meeting with U.S. Attorney General Jeff Sessions to present a list of ways the federal government can help stop the bloodbath on Chicago streets. “On the FBI, DEA, ATF, send more agents [who] are permanently placed here in Chicago to cooperate and work with our Chicago Police Department. They do it in a number of areas today. But, we don’t have the full expanse of what we need to do the job and we have a good relationship with those three federal entities,” the mayor said.

“Second is invest in the technology that you saw in Englewood in the 7th District and the 11th District — the strategic predictive analytic rooms — help us take that to other police districts in the city.”

The mayor’s wish list goes beyond policing to expansion of mentoring, summer jobs and after-school programs from which both the state and federal government have been AWOL, as he put it. “I talked about making sure that our kids have an alternative consistent with what I’ve said about BAM [Becoming A Man] as a mentoring program,” Emanuel said. “There’s an account that deals with ex-offenders. We would like to see that because we have the largest ex-offender program. . . . And help us with summer jobs and after school where the federal government has actually been cutting those resources.”

Emanuel said he also renewed his call for the U.S. Justice Department to step up federal prosecution of gun crimes. A Chicago Sun-Times story last year found that federal weapons charges in Chicago have fallen slightly over the past five years — despite the local rise in firearm offenses. Federal prosecutors in some other major urban areas — Manhattan, Brooklyn, Milwaukee, Detroit and Baltimore — have charged far more people with weapons offenses than the U.S. attorney’s office in Chicago has.

Sources said the meeting with Sessions focused exclusively on ways the Justice Department can assist Chicago in stopping the unrelenting gang violence on city streets.

Tuesday, January 10, 2017

"Want to fix gun violence in America? Go local."

The title of this post is the headline of this new Guardian special report that does an impressive job mapping and unpacking the locales of gun violence throughout the United States. Here is how it gets started:

The map of America’s gun violence epidemic can seem overwhelming. There were more than 13,000 gun homicides in the US in 2015, across nearly 3,500 cities and towns. But the toll of this gun violence was not distributed equally.

Half of America's gun homicides in 2015 were clustered in just 127 cities and towns, according to a new geographic analysis by the Guardian, even though they contain less than a quarter of the nation’s population.

Even within those cities, violence is further concentrated in the tiny neighborhood areas that saw two or more gun homicide incidents in a single year.

Four and a half million Americans live in areas of these cities with the highest numbers of gun homicide, which are marked by intense poverty, low levels of education, and racial segregation. Geographically, these neighborhood areas are small: a total of about 1,200 neighborhood census tracts, which, laid side by side, would fit into an area just 42 miles wide by 42 miles long.

The problem they face is devastating. Though these neighborhood areas contain just 1.5% of the country’s population, they saw 26% of America’s total gun homicides.

Gun control advocates say it is unacceptable that Americans overall are "25 times more likely to be murdered with a gun than people in other developed countries". People who live in these neighborhood areas face an average gun homicide rate about 400 times higher than the rate across those high-income countries.

Understanding this dramatic clustering of America’s of gun violence is crucial for the effort to save more lives. “We can’t do much about crime prevention of homicide if we try to attack it as a broad, global problem, throwing money at it in a sort of broad, global way,” said David Weisburd, a leading researcher on the geographic distribution of crime at George Mason University.

America’s gun policy debate is usually driven by high-profile mass shootings that seem to strike at random, and it focuses on sweeping federal gun control or mental health policies. But much of America’s gun homicide problem happens in a relatively small number of predictable places, often driven by predictable groups of high-risk people, and its burden is anything but random.

The concentration of gun homicides in certain census tracts mirrors what criminologists have discovered when they look at crime patterns within individual cities: roughly 1.5% of street segments in cities see about 25% of crime incidents, a trend dubbed “the law of crime concentration”.

Wednesday, September 07, 2016

Long-time readers know that I have been expressing constitutional concerns about broad federal criminal firearm prohibitions even since the Supreme Court in Heller decided that the Second Amendment includes an individual constitutional right to keep arms. Today, the Second Amendment took a bite into federal firearm laws via a fractured Third Circuit opinion that runs 174 pages(!) in a case that might now be headed to the Supreme Court. Here is how the en banc ruling in Binderup v. US AG, No. 14-4550 (3d CIr. Sept. 7, 2016) (available here) gets started:

Federal law generally prohibits the possession of firearms by any person convicted in any court of a “crime punishable by imprisonment for a term exceeding one year.” 18 U.S.C. § 922(g)(1). Excluded from the prohibition is “any State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less.” Id. § 921(a)(20)(B). And there is also an exemption for “[a]ny conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored,” where the grant of relief does not expressly preserve the firearms bar. Id. § 921(a)(20).

In United States v. Marzzarella we adopted a framework for deciding facial and as-applied Second Amendment challenges. 614 F.3d 85 (3d Cir. 2010). Then in United States v. Barton we held that the prohibition of § 922(g)(1) does not violate the Second Amendment on its face, but we stated that it remains subject to as-applied constitutional challenges. 633 F.3d 168 (3d Cir. 2011).

Before us are two such challenges. In deciding them, we determine how a criminal law offender may rebut the presumption that he lacks Second Amendment rights. In particular, a majority of the Court concludes that Marzzarella, whose two-step test we reaffirm today, drives the analysis. Meanwhile, a separate majority holds that the two as-applied challenges before us succeed. Part IV of this opinion sets out how, for purposes of future cases, to make sense of our fractured vote.

Sunday, July 24, 2016

Two new US Sentencing Commission "Quick Facts" on federal gun sentencing

The US Sentencing Commission late last week released two new Quick Facts publications, which are designed to "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format." Here are links to the latest publications and their summary description from the USSC:

In fiscal year 2015, there were 2,119 offenders convicted under 18 U.S.C. § 924(c) accounting for 3.0% of all offenders sentenced under the guidelines. The number of offenders convicted of multiple counts of section 924(c) has decreased from 174 offenders in fiscal year 2011 (7.5% of all section 924(c) offenders) to 119 in fiscal year 2015 (5.6% of all section 924(c) offenders).

In fiscal year 2015, there were 4,984 offenders convicted under 18 U.S.C. § 922(g) accounting for 7.0% of all offenders sentenced under the guidelines. The number of offenders sentenced under this statute has steadily decreased over the last five years from 5,761 in fiscal year 2011 to 4,984 offenders in fiscal year 2015.

Highlighting what brought Justice Thomas and Sotomayor together in Voisine

Some two-thirds of the states define assault in a way that includes reckless conduct. The court was therefore under substantial practical pressure to hold that reckless misdemeanor domestic assaults count for purposes of the federal gun law. If it had not, the federal law would have had to be changed or else it wouldn't have applied in those states....

Thomas’s vote [in dissent] can be explained partly on the basis that he doesn’t want to infringe gun ownership. He added a final section to his dissent suggesting as much. But Sotomayor, who didn’t join that section of Thomas’s dissent, can’t have been actuated by this motive. So why did the court’s most liberal member join its most conservative?

What Thomas and Sotomayor share in common -- along with being the court’s two members of racial minorities -- is a long-term concern with the overreach of federal criminal law. Thomas’s worry has to do with federalism and the encroachment of the federal government into state law matters. Sotomayor’s concern is more with the status of the individual defendant, who may be subject to long federal sentences.

Yet it’s noteworthy that both right and left saw the court’s decision as potentially troubling. Neither Thomas nor Sotomayor is an apologist for domestic violence. But both saw the court as extending the reach of federal criminal law unnecessarily under the shadow of concern about the dangers of domestic violence. In their own way, each tries to be a conscience on a court that often acts pragmatically. This time, the two consciences converged.

Monday, June 27, 2016

Confirming that the Second Amendment has far more bark than bite when push comes to shove (puns intended), the Supreme Court this morning rejected a narrow interpretation of the federal criminal statute that forever prohibits any firearm possession by any persons who are convicted of certain misdemeanors. The opinion for the Court authored by Justice Kagan in Voisine v. US, 14-10154 (S. Ct. June 27, 2016) (available here), gets started this way:

Federal law prohibits any person convicted of a “misdemeanor crime of domestic violence” from possessing a firearm. 18 U.S.C. §922(g)(9). That phrase is defined to include any misdemeanor committed against a domestic relation that necessarily involves the “use . . . of physical force.” §921(a)(33)(A). The question presented here is whether misdemeanor assault convictions for reckless (as contrasted to knowing or intentional) conduct trigger the statutory firearms ban. We hold that they do.

Justice Thomas authored a dissent in Voisine, which was partially joined by Justice Sotomayor. His dissent is nearly twice as long as the opinion for the Court, and it starts and ends this way:

Federal law makes it a crime for anyone previously convicted of a “misdemeanor crime of domestic violence” to possess a firearm “in or affecting commerce.” 18 U.S.C. §922(g)(9). A “misdemeanor crime of domestic violence” includes “an offense that . . . has, as an element, the use or attempted use of physical force . . . committed by [certain close family members] of the victim.” §921(a)(33)(A)(ii). In this case, petitioners were convicted under §922(g)(9) because they possessed firearms and had prior convictions for assault under Maine’s statute prohibiting “intentionally, knowingly or recklessly caus[ing] bodily injury or offensive physical contact to another person.” Me. Rev. Stat. Ann., Tit. 17–A, §207(1)(A) (2006). The question presented is whether a prior conviction under §207 has, as an element, the “use of physical force,” such that the conviction can strip someone of his right to possess a firearm. In my view, §207 does not qualify as such an offense, and the majority errs in holding otherwise. I respectfully dissent....

At oral argument the Government could not identify any other fundamental constitutional right that a person could lose forever by a single conviction for an infraction punishable only by a fine. Tr. of Oral Arg. 36–40. Compare the First Amendment. Plenty of States still criminalize libel.... I have little doubt that the majority would strike down an absolute ban on publishing by a person previously convicted of misdemeanor libel. In construing the statute before us expansively so that causing a single minor reckless injury or offensive touching can lead someone to lose his right to bear arms forever, the Court continues to “relegat[e] the Second Amendment to a second-class right.” Friedman v. Highland Park, 577 U. S. ___, ___ (2015) (THOMAS, J., dissenting from denial of certiorari) (slip op., at 6).

In enacting §922(g)(9), Congress was not worried about a husband dropping a plate on his wife’s foot or a parent injuring her child by texting while driving. Congress was worried that family members were abusing other family members through acts of violence and keeping their guns by pleading down to misdemeanors. Prohibiting those convicted of intentional and knowing batteries from possessing guns — but not those convicted of reckless batteries — amply carries out Congress’ objective.

Instead, under the majority’s approach, a parent who has a car accident because he sent a text message while driving can lose his right to bear arms forever if his wife or child suffers the slightest injury from the crash. This is obviously not the correct reading of §922(g)(9). The “use of physical force” does not include crimes involving purely reckless conduct. Because Maine’s statute punishes such conduct, it sweeps more broadly than the “use of physical force.” I respectfully dissent.

Sunday, June 19, 2016

Even after Orlando shootings, GOP leaders in Congress unwilling to allow more medical research into gun deaths

Though I generally favor so-called "common-sense" gun regulations, I am not sure that more gun regulations will really help to reduce gun violence. But I am sure that more research on gun violence and gun-related deaths could and should help us better engineer laws to advance public safety. Consequently, I was saddened and disappointed to see this recent article in The Hill. It is headlined "GOP rebuffs doctors on gun research," and here are excerpts:

The American Medical Association’s new push to unfreeze federal funding for gun research is hitting a wall of resistance in the Republican Party. In the wake of the mass shooting in Orlando, the nation’s leading doctors group announced Tuesday it plans to “actively lobby” against a nearly 20-year-old budget rule that has prevented federal researchers from studying gun-related deaths.

The near-unanimous vote, which took place two days after Orlando shooting early Sunday morning, puts the powerful doctor’s lobby at odds with Second Amendment supporters who have argued that gun-related violence is no different from other violent acts.

Dr. Alice Chen, the executive director of the nonprofit Doctors for America, called the move a “game changer” for the long-standing fight to lift the research restrictions. “The strength of the AMA's vast membership, plus that of the over 100 medical and public health groups across the country, will be hard for Congress to ignore,” she said.

But Republicans in Congress, including those in the House Doctors Caucus who are members of the group, are soundly rejecting the AMA’s calls for research into gun-related deaths. “I don’t particularly see the need for it, quite frankly,” Rep. Tom Cole (R-Okla.), who leads health funding for the House Appropriations Committee, told The Hill on Thursday.

Rep. Michael Burgess (R-Texas), a member of the House Doctors Caucus, said he also opposed the policy change. “Although I’m a member of the AMA, I don’t always agree with the position they take,” Burgess told The Hill on Thursday. “It seems to have worked well. I don’t favor changing it,” Burgess said of federal researchers staying away from the issue of guns....

It’s becoming increasingly unlikely that the gun research will be part of Congress’s response to the Orlando shooting. Cole, the Oklahoma Republican, said GOP leaders are much more likely to boost funding for the FBI to improve background checks. “Research is good, but unfortunately, this administration has used terrorism despicably to advance their gun control issue. It doesn’t shock me to tears that he might use [Centers for Disease Control and Prevention] research rules to do the same,” Rep. Trent Franks (R-Ariz.) said Thursday.

Democrats this week already forced the GOP-led House Energy and Commerce Committee to vote on the research issue during its markup of a mental health bill. That amendment, from Rep. Tony Cárdenas (D-Calif.), failed on a party line vote of 23-29.

The moratorium on federal gun research stems from a 1997 budget amendment that prohibits federal funds “to advocate or promote gun control” — language that researchers say has had a chilling effect. Republicans adopted the so-called Dickey amendment, named after Rep. Jay Dickey (R-Ga.), in 1997 after strong lobbying from groups such as the National Rifle Association. Gun rights supporters have long argued that government agencies use studies to advance gun control, something researchers deny.

Dickey has since reversed course and is now campaigning to change the wording in the law. Other gun rights advocates have remained strong in their opposition. Larry Keane, general counsel for the National Sports Shooting Association, said the Centers for Disease Control and Prevention has “misdiagnosed the issue.”

“Our view is that criminal violence involving firearms is a criminal justice [issue],” Keane said in an interview Thursday. “The CDC should focus on its mission, which is addressing diseases and illnesses like cancer and preventing an outbreak of the Zika virus.”

The renewed push for lifting the federal research restrictions began on Tuesday, after the AMA’s policy-making arm, the House of Delegates, decided by voice vote to “actively lobby” on the issue. It also officially declared gun violence to be a "public health crisis” for the first time, over the protest of some members.

American Academy of Family Physicians president, Dr. Wanda Filer, who attended the meeting in Chicago, said she heard “very few nay votes” during the vote. The resolution had been drafted late into the night on Sunday by a group of young doctors who skipped planned conference festivities to draft it.

It was the second year in a row the AMA’s conference was interrupted by reports of a mass shooting. Last year, the AMA held a moment of silence after the shooting at a historic black church in Charleston, S.C., that killed nine people....

Filer said the AMA’s vote adds momentum to the cause that many physician groups, like hers, already supported. “Without research and being brave enough to ask the questions, we’re going to have ill-informed, emotional arguments,” Filer said Thursday. “What we’re saying is, we need research.”

Importantly, I do not disagree with the gun rights advocates' view that "criminal violence involving firearms is a criminal justice [issue]," but accepting that notion does not logically justify precluding medical research on gun-related deaths. If our society is truly committed to reducing gun deaths, we ought to have bright researchers working in all disciplines studying this grave problem to try to discover evidence-based strategies to improve public safety. But, sadly, it seems that even after the worst mass shooting in recent US history, partisan politics can still preclude sensible policymaking.

Saturday, April 30, 2016

Emerging news about two new notable gun control and gun safety efforts

These two recent stories about gun control and gun safety efforts from the folks in California and from the federal government have caught my eye lately:

From the west coast here, "Strict state gun-control measure close to making November ballot"

From inside the Beltway here, "Obama to make 'smart guns' push: The president is opening a new front against gun violence, and it's alarming cops who say they don’t want to be guinea pigs."

Long-time readers ikely know I have long thought both governments and others ought to be investing in smart gun technologies to try to cut down on gun violence and related harms. At the very least, I think modern guns ought to have some kind of built in technology that could provide, though could/GPS technology, some kind of digital trace whenever used by someone other than their licensed owner (I have in mind a kind of Lojack system that would only report when the licensed owner is not the user).

As the title of my post is meant to suggest, I think there are so many notable legal and social developments that could be referenced in an effort to account for the increased mayhem in Chicago and the increased mildness in New York City. Indeed, what is so remarkable is the reality that all of the high-profile developments referenced in the title of this post have occurred nearly in parallel in both jurisdictions over the last decade, and yet the potential impact of all these developments seems to be playing out so very differently.

In a number of prior posts in recent years (some of which I have linked below), I have tried to figure out what seems to be working and not working in these two big US cites and various others to reduce or increase violent crime. But, as some of the posts below suggest, it often seems that the only simple explanation for dynamic crime rate data is that they seem to defy simple explanations:

Tuesday, March 22, 2016

Unanimous Supreme Court suggests Second Amendment can preclude state felony prosecution for public weapon possession

I wanted a chance to review closely the Supreme Court's notable Second Amendment work yesterday in Caetano v. Massachusetts, No. 14-10078 (S. Ct. March 21, 2016) (available here), before blogging about what strikes me as a significant constitutional ruling. But even after doing some more review, I am still scratching my head a bit regarding both the Court's brief per curiam opinion and the lengthy and forceful concurring opinion authored by Justice Alito and joined by Justice Thomas.

Caetano strikes me as significant primarily because the Supreme Court has not ruled on the merits in a Second Amendment case since the 2010 McDonald ruling, and also because both McDonald and its landmark precursor, the 2008 Heller ruling, left so much uncertain about the reach and limits of the Second Amendment. In addition, the merits of the Caetano case seem significant because it involved (1) possession of a weapon other than a traditional firearm (a stun-gun), and (2) a state criminal conviction affirmed by a state Supreme Court based on possession of this weapon outside the home. Finally, as the title of this post suggests, it seems significant that not a single Justice dissented from the the Caetano per curiam ruling to vacate the judgment of the Supreme Judicial Court of Massachusetts based on the Second Amendment.

But Justice Alito's concurrence, which seems like it might have been initially drafted to serve as an opinion for the full Court, reasonably complained that the Court’s per curiam opinion was "grudging" because it seems open to the possibility that the defendant might still have her felony conviction for possession of a stun-gun outside her home affirmed on some other grounds. Thus, as the title of this post is meant to indicate, I think the Caetano ruling only suggests a broadened application of the Second Amendment to limit a state felony prosecution.

The Court set aside the state court ruling, and told that tribunal to take another look. The decision left in doubt whether the conviction in the case would stand, and whether the state could come up with other reasons to support its ban. It is possible that the state’s highest court will call for new legal briefs or a hearing on what to do about the Boston woman in the case, Jaime Caetano.

Her defense lawyer, Boston public defender Benjamin H. Keehn, said after the ruling Monday that he would seek to have her conviction vacated. Although she was found guilty of a serious crime (a felony) under the Massachusetts procedure used in her case, she was not given a jail sentence or a fine. Keehn said he was “not positive” what the Supreme Court ruling meant, and said he was studying whether there had been comparable situations in other cases returned to lower courts without specific instructions.

Monday, March 14, 2016

Could three seemingly simple laws really reduce US gun deaths by more than 90 percent?

The question in the title of this post is prompted by this CNN report from late last week about some recent notable empirical research. The CNN piece is headlined "Study: 3 federal laws could reduce gun deaths by more than 90%," and here are excerpts (with a few links from the original):

Passing federal laws that require universal background checks for firearm purchases, background checks on ammunition purchases and firearm identification could reduce the rate of U.S. gun deaths by more than 90%, according to a new study. "We wanted to see which restrictive gun laws really work, as opposed to saying 'restrictive laws work,' and figure out if we are pushing for a law which might not work," said Bindu Kalesan, assistant professor of medicine at Boston University and lead author of the study, which was published on Thursday in The Lancet.

Researchers arrived at the projection by looking at the number of gun-related deaths in every state in 2010 and the types of laws that existed in those states in 2009, including restrictive laws, such as background checks and child access prevention laws, and permissive laws, such as stand-your-ground laws. They took into account differences in rates of gun ownership, unemployment and homicides that did not involve guns deaths. Out of the 25 existing state laws that Kalesan and her colleagues studied, nine were associated with lower rates of gun-related deaths.

The researchers found the largest effects for universal background checks, which were associated with a 39% reduction in death, and ammunition background checks, which were associated with an 18% reduction in death. Laws around firearm identification, which make it possible to determine the gun that fired a bullet, were associated with a 16% reductions in deaths.

Researchers projected that federal laws expanding background checks for firearms purchases would reduce the U.S. gun death rate by 57%, while background checks for ammunition purchases would cut gun death rates by 81% and firearm identification would reduce the rate by 83%. The researchers said it would take many years to lower the rates so far. Although a federal policy known as the Brady Law requires background checks on individuals who want to buy a firearm from a licensed dealer, it leaves a large gap, as an estimated 40% of firearms are acquired through unlicensed sellers, such as some online and at gun shows....

The researchers found that nine of the 25 laws they analyzed were linked to higher rates of gun-related deaths. Another seven laws did not seem to have an impact one way or the other on gun-related deaths. Some of the laws that were linked with greater numbers of gun related deaths came as a surprise to the researchers. For example, bans on assault weapons, such as semi-automatic guns, were associated with a 15% increase in mortality....

In an editorial published with the study, Harvard School of Public Health Professor David Hemenway said the study was "a step in the right direction" to understand the scientific evidence about policies to reduce gun violence. But, he said, cutting mortality rates so dramatically is more complicated than simply implementing background checks for firearms and ammunition. "That result is too large -- if only firearm suicide and firearm homicide could be reduced so easily," Hemenway wrote.

Although there is good evidence that state laws requiring universal background checks, as well as handgun-purchaser licensing or permit requirements, reduce homicides and suicides, the current study does not add to the evidence base, said Daniel Webster, director of the Johns Hopkins Center for Gun Policy and Research, who was not involved in the current study. Webster recently carried out a study in which they found a 1995 Connecticut law requiring firearm purchasers to have a license was linked to a sharp drop in gun-related murders in the state. For that study, he and his colleagues compared murder rates in Connecticut with similar states.

The problem with the current study, Webster said, is that it compared the number of deaths between all states, which could vary in many more ways than the authors accounted for, such as differences in culture, race and ethnic makeup, poverty rates and access to mental health care. "Not surprisingly, the findings don't make much logical sense when it comes to gun policies other than the finding that universal background checks are protective," Webster said. For example, it is not clear why there would be such a large association, as the study found, between firearm identification laws and reductions in gun-related deaths, he added.

Monday, February 29, 2016

"Can you think of another constitutional right that can be suspended based upon a misdemeanor violation of a State law?"

The question in the title of this post is the question I have been asking again and again since the US Supreme Court decided in Heller and McDonald that the Second Amendment secured an individual right to keep and bare arms that was to be enforced in a manner comparable to other rights enumerated in the Bill of Rights. It also happened to be the question that Justice Clarence Thomas asked the federal government during oral argument today in Voisine v. United States.

As highlighted by a whole bunch of press coverage spotlighted here at How Appealing, it is notable simply that Justice Thomas spoke up at oral argument after having been silent in that setting for a decade. But I trust regular readers will not be surprised to hear that I am excited that Justice Thomas decided he had to speak up to ask what I think is the very hard question about the meaning and reach of the Second Amendment that lacks a very good answer if Heller and McDonald are serious about the need to treat the Second Amendment seriously like all other rights enumerated in the US Constitution's Bill of Rights.

Not only did Justice Thomas ask this important question toward the tail end of oral argument in Voisine, he followed up with a First Amendment analogy that I find pretty compelling:

JUSTICE THOMAS: [L]et's say that a publisher is reckless about the use of children, and what could be considered indecent [placement in an ad] and that that triggers a violation of, say, a hypothetical law against the use of children in these ads, and let's say it's a misdemeanor violation. Could you suspend that publisher's right to ever publish again?

MS. EISENSTEIN: Your Honor, I don't think you could suspend the right to ever publish again, but I think that you could limit, for example, the manner and means by which publisher...

JUSTICE THOMAS: So how is that different from suspending your Second Amendment right?

Critically, even though I do not believe the government here had any satisfactory answers for Justice Thomas's tough Second Amendment questions, the Justice was not even making his arguments as forcefully as he could have in the context of the federal criminal prosecution at issue in Voisine. Critically, Voisine is not a case in which someone previously convicted of a state "reckless" misdemeanor is now seeking a legal declaration that he has Second Amendment rights. Rather, Stephen Voisine is a schnook who was subject to a federal felony prosecution (and as much as 10 years in federal prison) simply for possessing a rifle(while apparently hunting a bald eagle!?!?) because a number of years earlier he pleaded guilty to a Maine domestic violence misdemeanor.

For the record, I am not a big fan of Maine schnooks who in the past were involved in a domestic incident and years later go out hunting bald eagles. But I am even less of a fan of the creation of new jurisprudential doctrines that would allow the federal government to bring a felony prosecution of an individual engaged in what might be otherwise constitutionally protected activity simply based on a long-ago misdemeanor violation of a State law. That is the reality of what is going on in Voisine, and even folks not supportive of Second Amendment rights should be concerned that a case like Voisine could end up casting poor light on other constitutional protections if his conviction gets upheld in this case.

Wednesday, February 10, 2016

Paul Cassell, the former federal judge who sentenced Weldon Angelos to 55 years, writes directly to Prez Obama to support his clemency petition

As reported in this Washington Post article, headlined "Former federal judge to President Obama: Free the man I sentenced to 55 years in prison," former US District Judge (and now Prof) Paul Cassell has now written directly to the President to urge him to "swiftly commute his sentence." Regular readers likely know a lot about the story of Weldon Angelos, whom I once helped represent as he pursued collateral appeals, and the Post article provides some of the details and context behind his current push for clemency:

Calling the sentence “one of the most troubling that I ever faced in my five years on the federal bench,” Paul G. Cassell, now a professor at the University of Utah’s law school, said the mandatory minimum sentence he was required to impose on Angelos was one of the chief reasons he chose to step down as a judge.

“I write you as the judge who sentenced Weldon Angelos to a 55-year mandatory minimum prison term for non-violent drug offenses,” Cassell wrote to Obama. “It appears to me that Mr. Angelos meets all of the criteria for a commuted sentence.” Cassell was appointed to the bench in 2002 by former President George W. Bush.

In December, Obama granted clemency to 95 drug offenders as part of his continuing effort to give relief to drug offenders who were harshly sentenced in the nation’s war on drugs. But Angelos, who is behind bars at the Federal Correctional Institution at Mendota, was not on the president’s list. The president has commuted the sentences of 184 federal inmates, more individuals than the past five presidents combined. But sentencing reform advocates say that hundreds — and potentially thousands — of inmates who meet the Obama administration’s criteria for clemency, including Angelos, are still behind bars....

Angelos, the son of a Greek immigrant and the 36-year-old father of three, is one of the nation’s most famous nonviolent drug offenders and a symbol of the severe mandatory sentences. His case has been widely championed, including by Utah’s Republican Sen. Mike Lee, former FBI Director Bill Sessions, the group Families Against Mandatory Minimums and conservative billionaire Charles Koch. “Judge Cassell’s letter articulates well the grave injustice involved in Weldon’s prison sentence,” said Mark Holden, general counsel and senior vice president of Koch Industries,” who has urged attention to the Angelos case.

Like many inmates, Angelos has missed being with his children as they grew up. His 18-year-old son, Anthony, was six when he was sent to prison. His son, Jesse, was 4. His 13-year-old daughter, Meranda, was an infant. In an interview, Angelos said he had hoped the president would grant him clemency in time for him to see Anthony graduate from high school in June.

Angelos was sentenced to 55 years without the possibility of parole after he sold marijuana to a police informant three times in 2002, each time charging $350. Prosecutors alleged that Angelos, the founder of Utah hip-hop label Extravagant, was a gang member and a drug dealer. Angelos denied the allegations and declined a plea bargain offered by prosecutors. Angelos never used or pulled a gun, but the informant later testified in court that he saw one in Angelos’s car during the first buy. He said that during the second buy, Angelos was wearing an ankle holster holding a firearm. Officers later searched his home and found a gun.

The sentence Angelos received as a nonviolent first-time offender fell under a law called 924(c). Federal drug laws require 5- to 30-year mandatory minimum sentences for possessing, brandishing or discharging a gun during a drug-trafficking crime. For each subsequent gun conviction, there is a mandatory sentence of 25 years that must be served consecutively. This is often referred to as “gun stacking,” which is why Angelos received 55 years without parole. He received five years for the gun in the car; 25 years for the second gun charge, having one in an ankle strap; and another 25 years for a third firearms charge, the gun police found in his home. He got one day for the marijuana.

In 2004, when Cassell sentenced Angelos, he wrote a lengthy opinion, comparing Angelos’s sentence (738 months) with the guideline sentences for the kingpin of three major drug trafficking rings that caused three deaths (465 months), a three-time aircraft hijacker (405 months), a second-degree murderer of three victims (235 months) and the rapist of three 10-year-olds (188 months).

Tuesday, February 02, 2016

The question in the title of this post is what first jumped to my mind as I reviewed this USA Today report on the ugly crime spike in the Windy City recorded in January. Here are the basics:

The nation's third largest city recorded 51 homicides in January, the highest toll for the month since at least 2000. Gang conflicts and retaliatory violence drove the "unacceptable" increase in homicides, the police department said in a statement. But the rise in violence also notably comes as the Chicago Police Department faces increased scrutiny following the court-ordered release of a police video showing a white police officer fatally shooting a black teenager 16 times, and as the department implements changes in how it monitors street stops by officers.

Chicago routinely records more homicides annually than any other American city, but the grim January violence toll marks a shocking spike in violence in a city that recorded 29 murders for the month of January last year and 20 murders for the month in 2014. In addition to the jump in killings, police department said that it recorded 241 shooting incidents for the month, more than double the 119 incidents recorded last January.

The rise in violence comes after the Chicago Police Department reported 468 murders in 2015, a 12.5% increase from the year before. There were also 2,900 shootings, 13% more than the year prior, according to police department records.

In recent weeks, the police department pushed back against the notion that the rise in homicides could be due to cops becoming less aggressive due to the negative attention the department has received in the aftermath of the release of the police video showing the shooting of Laquan McDonald. The city saw several weeks of largely peaceful protests after the release of the video. The U.S. Justice Department has launched a civil rights investigation of the city.

Mayor Rahm Emanuel, who faced fierce backlash in the city's African-American community over his handling of the McDonald case, fired his police superintendent, Garry McCarthy, after the video's release. Interim Superintendent John Escalante expressed frustration earlier this month as the homicide toll climbed, but said it was due mainly to gang activity. He also said he was concerned about social media fueling gang disputes, with fatal incidents starting as a war of words on the Internet....

St. Louis saw a dramatic increase in the number homicides following the August 2014 police shooting death of Michael Brown in nearby Ferguson, which spurred months of angry protests. And Baltimore saw a spike in homicides following the death of Freddie Gray in Baltimore in April, an incident that sparked unrest in the Charm City. In both Baltimore and St. Louis, the rise in violent crime began to increase prior to the high-profile incidents and accelerated afterward.

The department says it has seen a decrease in investigative stops by cops on the streets after new rules went into effect Jan. 1 requiring the police department to bolster the monitoring of stops and protective pat downs known as "stop-and-frisk." The police department entered an agreement with the American Civil Liberties Union to record contact cards for all street stops after the organization criticized the the city's police for disproportionately targeting minorities for questioning and searches. In the past, police officers were required only to fill out cards for stops that didn't result in an arrest. The new contact cards also require police officers to offer greater detail about the stops than they have in the past.

This Chicago Sun-Times article, headlined "Street cops say 'ACLU effect' drives spike in gun violence," provides one account of what might be an importance cause of these latest ugly crime developments. But the title of this post is intended to flag the possibility that an increase in gun violence might also be attributed in part to an increase of gun availability, both legal and illegal, that seems to necessarily flow from the Supreme Court's recent Second Amendment work and continued controversies over gun control. For a host of reasons, I have long wished that there was a sound basis to believe (or at least hope) that increased gun availability could actually reduce crime. This Chicago news would seem to undermine such a hypothesis.

Thursday, January 14, 2016

Is there any chance any domestic criminal justice issue gets any attention during tonight's GOP debate?

The first big Prez debate of this big Prez election year takes place in South Carolina, and I am already assuming that any number of notable and important domestic criminal justice issues will be largely forgotten as GOP candidates spar again over the now-standard debate topics of immigration, ISIS and terrorism, and economic development. Still, as this new Marshall Project piece highlights, the location of the GOP debate tonight was the site of a high-profile mass shooting, and that reality might perhaps enhance the (slim) odds we get a question or two about the death penalty or gun violence or the racial dynamics of crime, policing and punishment. The MP piece is titled "Republican Candidates on Criminal Justice: A Primer," and here is how it sets up a review of what the GOP candidates in the prime-time debate have said so far on the campaign trail about these issues:

Race. Guns. The Death Penalty.

If these issues resounded anywhere in the past year, it was in Charleston, S.C., where Dylann Roof shot and killed nine parishioners in a Bible study class in one of the oldest black churches in the South. The June massacre, apparently propelled by the gunman’s white supremacist views and coming amid a spate of killings of blacks by the police around the country, underscored a plaintive question being asked more and more: Do black lives matter?

Thursday night, Republicans seeking the party’s nomination for president gather in Charleston for their sixth televised debate, less than three weeks before their first big contest, the Iowa caucuses. In the weeks after the killings at Emanuel A.M.E. Church, the South Carolina Legislature finally confronted the racially divisive symbol of secession, the Confederate battle flag, and ordered it removed from the state house grounds. But questions of race, guns and the death penalty have only intensified nationally since then. Here’s how the candidates (listed in alphabetical order) stand on some of those issues, as reviewed by The Marshall Project.

Tuesday, December 15, 2015

How many fundamental rights in the Bill of Rights can be uniquely regulated for adults under 21?

The answer to the question in the title of this post would seem to be "at least one" in light of an interesting ruling today by the Seventh Circuit in Horsley v. Trame, No. No. 14-2846 (7th Cir. Dec. 15, 2015) (available here). Here is the starting, ending and some in-between key passages from the panel decision:

Tempest Horsley’s application to possess an Illinois Firearm Owner’s Identification Card, commonly known as a “FOID card,” was returned to her as incomplete because she was over 18 but not yet 21 and her application did not contain a parent or guardian signature. Although she could have under Illinois law, she did not seek further review from the Director of the Illinois State Police. We disagree with Horsley that the Illinois statutory scheme violates her rights under the Second Amendment. Illinois does not impose a categorical ban on firearm possession for 18-to- 20-year-olds whose parents do not consent. Rather, when an applicant cannot obtain a parent or guardian signature, he or she may appeal to the Director for a FOID card, and the Director will make a determination. We conclude that this process for 18-to-20-year-olds is not unconstitutional, so we affirm the decision of the district court....

Horsley ... maintains that firearm possession by 18-to-20-year-olds falls within the scope of the Second Amendment. She emphasizes that persons over 18 can vote and serve in the military, get married without parental consent, and own land. Even though the age of majority was for many years 21, it is now 18, and so she argues that presentday 18-year-olds cannot be restricted from possessing firearms based on age alone. She points to historical evidence that she contends favors her position as well. The First Militia Act enacted by the United States Congress in 1792, for example, included 18-year-old men in the scope of those eligible for the militia. Because a minor could be a member of the militia and be armed, she reasons that the Second Amendment gives these persons a right to bear arms. We need not decide today whether 18-, 19-, and 20-year-olds are within the scope of the Second Amendment. Cf. Nat’l Rifle Ass’n, 700 F.3d 185 at 204-05 (also declining to resolve issue). Even if they are, our next step would be to turn to means-ends scrutiny of the regulation. Ezell, 651 F.3d at 703.... Significantly, although Horsley’s arguments treat the challenged statute as a categorical ban on firearm possession, the FOID Card Act does not in fact ban persons under 21 from having firearms without parent or guardian consent. Having a parent or guardian signature may speed up the process, but it is not a prerequisite to obtaining a FOID card in Illinois. Rather, a person for whom a parent’s signature is not available can appeal to the Director of the Illinois State Police [and any] denial is subject to judicial review....

The absence of a blanket ban makes the Illinois FOID Card Act much different from the blanket ban on firearm possession present in Heller. That there is not a categorical ban here also distinguishes this case from Planned Parenthood v. Danforth, 428 U.S. 52 (1976), to which Horsley points. There the Supreme Court struck down a “blanket provision” requiring the consent of a parent or person in loco parentis before an unmarried minor could have an abortion during her first 12 weeks of pregnancy unless necessary to preserve the mother’s life. Id. at 74....

The Illinois statute is substantially related to the achievement of the state’s interests. The goal of protecting public safety is supported by studies and data regarding persons under 21 and violent and gun crimes.... Trame also points to scholarly research on development through early adulthood that supports a conclusion that the Illinois FOID card application procedure for persons under 21 fits the state’s compelling interest in public safety....

We conclude that Illinois has shown a sufficient meansend relationship between the challenged statute and an important government interest. Illinois’s decision to use parents as a first check on firearm possession by persons under 21 is reasonable. The parent or guardian signature provision provides for an individualized assessment of the applicant’s fitness for possession of a firearm by a person likely to be in the best position to make such an evaluation. That signature also subjects the parent to liability for harm caused by firearm ownership. The legislature could reasonably conclude that many persons under 21 would not have the financial ability to compensate a person injured in a firearms incident, and the signature provision in the Illinois statute provides a means for an additional source of income in that event. If no parent or guardian is willing or able to sign the application, the Illinois statute provides that another person can make the individualized assessment — the Director of State Police. The challenged provisions in the FOID Card Act are substantially related to the state’s important interests, and we do not find the law unconstitutional.

“[O]ur central holding in” District of Columbia v. Heller, 554 U. S. 570 (2008), was “that the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home.” McDonald v. Chicago, 561 U. S. 742, 780 (2010) (plurality opinion). And in McDonald, we recognized that the Second Amendment applies fully against the States as well as the Federal Government. Id., at 750; id., at 805 (THOMAS, J., concurring in part and concurring in judgment). Despite these holdings, several Courts of Appeals— including the Court of Appeals for the Seventh Circuit in the decision below — have upheld categorical bans on firearms that millions of Americans commonly own for lawful purposes. See 784 F. 3d 406, 410–412 (2015). Because noncompliance with our Second Amendment precedents warrants this Court’s attention as much as any of our precedents, I would grant certiorari in this case....

[The Seventh Circuit's] analysis misreads Heller. The question under Heller is not whether citizens have adequate alternatives available for self-defense. Rather, Heller asks whether the law bans types of firearms commonly used for a lawful purpose — regardless of whether alternatives exist. 554 U. S., at 627–629. And Heller draws a distinction between such firearms and weapons specially adapted to unlawful uses and not in common use, such as sawed-off shotguns. Id., at 624–625. The City’s ban is thus highly suspect because it broadly prohibits common semiautomatic firearms used for lawful purposes. Roughly five million Americans own AR-style semiautomatic rifles. See 784 F.3d, at 415, n.3. The overwhelming majority of citizens who own and use such rifles do so for lawful purposes, including self-defense and target shooting. See ibid. Under our precedents, that is all that is needed for citizens to have a right under the Second Amendment to keep such weapons.

The Seventh Circuit ultimately upheld a ban on many common semiautomatic firearms based on speculation about the law’s potential policy benefits. See 784 F. 3d, at 411–412. The court conceded that handguns — not “assault weapons” — “are responsible for the vast majority of gun violence in the United States.” Id., at 409. Still, the court concluded, the ordinance “may increase the public’s sense of safety,” which alone is “a substantial benefit.” Id., at 412. Heller, however, forbids subjecting the Second Amendment’s “core protection . . . to a freestanding ‘interest-balancing’ approach.” Heller, supra, at 634. This case illustrates why. If a broad ban on firearms can be upheld based on conjecture that the public might feel safer (while being no safer at all), then the Second Amendment guarantees nothing.

The Court’s refusal to review a decision that flouts two of our Second Amendment precedents stands in marked contrast to the Court’s willingness to summarily reverse courts that disregard our other constitutional decisions.... There is no basis for a different result when our Second Amendment precedents are at stake. I would grant certiorari to prevent the Seventh Circuit from relegating the Second Amendment to a second-class right.

As I have noted in prior posts, the Second Amendment has been relegated to status as a "second-class right" primarily due to dicta in Heller suggesting that any person who ever commits a crime can and does forever forfeit the "personal right to keep and bear arms for lawful purposes." Lower courts since Heller have consistently upheld federal prosecution and severe sentencing of persons who long ago committed nonviolent crimes simply for much later seeking to "keep and bear arms for lawful purposes." Not a single Justice has said a peep about this extreme restriction on Second Amendment rights even though, to my knowledge, few have ever seriously argued that any other right enumerated in the Bill of Rights is or should be subject to permanent forfeiture forever once a person is adjudicated guilty of a crime.

The significant and enduring pattern of courts upholding laws criminalizing persons with criminal records for gun possession, especially in a nation in which it seems more than a 25% of adults have some kind of criminal record, is what I think truly relegates the Second Amendment to a second-class right. But, for obviously reasons, I am not expecting any SCOTUS Justices to note anytime soon that a mere local ban on possessing a certain type of firearm is far less consequential than the current federal ban on tens of millions of Americans ever being able to possess any firearm even for self-defense in their home.

Friday, October 30, 2015

SCOTUS grants cert on quirky aspect of federal gun prohibition case

As reported in this SCOTUSblog post, headlined "Court grants review in firearm-possession case," the Supreme Court decided today to take up a federal criminal case involving gun rights. But, interestingly, as Amy Howe explains in the post, the Court did not accept for review the Second Amendment issue lurking in the case:

This afternoon the Court issued an initial group of orders from its October 30 Conference, adding one new case to its merits docket for the Term. The Justices had considered Voisine v. United States at two earlier Conferences before granting review today.

At issue are the convictions of two Maine men, Stephen Voisine and William Armstrong, for violating a federal law that prohibits the possession of firearms and ammunition by individuals who have previously been convicted of a misdemeanor crime of domestic violence. Both men allege that their convictions under Maine law for simple assault and misdemeanor domestic violence assault, respectively, do not automatically qualify as misdemeanor crimes of domestic violence for purposes of the federal law, 18 U.S.C. § 922(g)(9), because both provisions of Maine law can be violated by conduct that is merely reckless, rather than intentional. The U.S. Court of Appeals for the First Circuit rejected that argument, and the federal government urged the Court to deny review, but the Justices today disregarded that recommendation.

Notably, however, the Court agreed to review only the recklessness question; it declined to review a second question presented by the petition, which asked the Justices to rule on whether the ban on possession of firearms by individuals convicted of domestic violence violated their rights under the Second Amendment.

Wednesday, August 26, 2015

"Why the U.S. is No. 1 -- in mass shootings"

In light of sad and tragic news of yet another multiple-murder shooting in Virginia (CNN report here), I found especially notable this Los Angeles Times article about some sociology research on high-profile crimes in the United States. The piece has the headline given to this post, and it gets started this way:

The United States is, by a long shot, the global leader in mass shootings, claiming just 5% of the global population but an outsized share -- 31% -- of the world's mass shooters since 1966, a new study finds.

The Philippines, Russia, Yemen and France -- all countries that can claim a substantial share of the 291 documented mass shootings between 1966 and 2012 -- collectively didn't even come close to the United States.

And what makes the United States such a fertile incubator for mass shooters? A comprehensive analysis of the perpetrators, their motives and the national contexts for their actions suggests that several factors have conspired to create in the United States a potent medium for fostering large-scale murder.

Those factors include a chronic and widespread gap between Americans' expectations for themselves and their actual achievement, Americans' adulation of fame, and the extent of gun ownership in the United States.

Set those features against a circumstance the United States shares with many other countries -- a backdrop of poorly managed mental illness -- and you have a uniquely volatile brew, the new study says.

With those conclusions, University of Alabama criminologist Adam Lankford set out to illuminate the darker side of American "exceptionalism" -- the notion that the United States' size, diversity, political and economic institutions and traditions set us apart in the world. Lankford's paper is among those being presented this week at the American Sociological Assn.'s annual meeting, in Chicago.

Perhaps no single factor sets the United States apart as sharply as does gun ownership, wrote Lankford. Of 178 countries included in Lankford's analysis, the United States ranked first in per-capita gun ownership. A 2007 survey found 270 million firearms in U.S. civilian households -- an ownership rate of 88.8 firearms per 100 people. Yemen followed, with 54.8 firearms per 100 people.

Saturday, August 22, 2015

"Guns and Drugs"

The title of this post is the title of this notable new paper by Benjamin Levin now available via SSRN. Here is the abstract:

This Article argues that the increasingly prevalent critiques of the War on Drugs apply to other areas of criminal law. To highlight the broader relevance of these critiques, the Article uses as its test case the criminal regulation of gun possession.

The Article identifies and distills three lines of drug-war criticism, and argues that they apply to possessory gun crimes in much the same way that they apply to drug crimes. Specifically, the Article focuses on: (1) race- and class-based critiques; (2) concerns about police and prosecutorial power; and (3) worries about the social costs of mass incarceration. Scholars have identified structural flaws in policing, prosecuting, and sentencing in the drug context; in the Article, I highlight the ways that the same issues persist in an area — possessory gun crime — that receives much less criticism.

Appreciating the broader applicability of the drug war’s critiques, I contend, should lead to an examination of the flaws in the criminal justice system that lessen its capacity for solving social problems.

Saturday, June 13, 2015

How many hundreds (or thousands?) of ACCA prisoners could be impacted by a big ruling in Johnson?

The Supreme Court Term is winding down, and we might get a ruling as early as this coming wee in the (re)argued case Johnson v. US concerning the (un)constitutionality of the Armed Career Criminal Act. As federal sentencing fans should know, there seem to be a real chance that Justice Scalia will convince enough of his colleagues to strike down ACCA as unconstitutionally vague.

This helpful new "Quick Facts" report from the US Sentencing Commission indicates that in Fiscal Year 2014 roughly 10% of 5,500 federal firearm offenders were sentenced under ACCA to an average sentence of 188 months in prison. Assuming that these numbers are typical for firearm sentencing in each of the last dozen years, we can then extrapolate to estimate that there may be as many as 7,000 current federal prisoners serving ACCA sentencing term.

Critically, though, even if the Supreme Court were to declare ACCA's residual clause unconstitutionally vague, that ruling alone would not necessarily impact all (or perhaps even most) of current ACCA prisoners. Sentencing judges in many (maybe most) cases sentenced under ACCA likely did not rely on the residual clause of the statute to find enough triggering prior offenses to require the application of the severe ACCA sentence. Among the uncertainties which could flow from a big ACCA ruling in Johnson is whether other parts of the ACCA statute and prior convictions based on other parts of the ACCA statute are still valid if one ACCA clause is struck down as unconstitutionally vague.

Monday, June 08, 2015

The Supreme Court started its work this morning with this order list that include a grant of certiorari in one federal criminal case, Luis v. US. This SCOTUSblog page provides this account of the issue the case presents:

Whether the pretrial restraint of a criminal defendant's legitimate, untainted assets (those not traceable to a criminal offense) needed to retain counsel of choice violates the Fifth and Sixth Amendments.

In addition, at the end of the orders list, the Justices denied cert in a gun case from San Francisco, which prompted a lengthy dissent by Justice Thomas (joined by Justice Scalia). Here is how that dissent begins:

“Self-defense is a basic right” and “the central component” of the Second Amendment’s guarantee of an individual’s right to keep and bear arms. McDonald v. Chicago, 561 U. S. 742, 767 (2010) (emphasis deleted). Less than a decade ago, we explained that an ordinance requiring firearms in the home to be kept inoperable, without an exception for self-defense, conflicted with the Second Amendment because it “ma[de] it impossible for citizens to use [their firearms] for the core lawful purpose of selfdefense.” District of Columbia v. Heller, 554 U. S. 570, 630 (2008). Despite the clarity with which we described the Second Amendment’s core protection for the right of self-defense, lower courts, including the ones here, have failed to protect it. Because Second Amendment rights are no less protected by our Constitution than other rights enumerated in that document, I would have granted this petition.

As I have noted in lots of prior posts in the wake of the Heller and McDonald rulings, if it is really true that "Second Amendment rights are no less protected by our Constitution than other rights enumerated in that document," a lot of laws criminalizing and severely punishing mere gun possession by those with a distant criminal past might be constitutionally suspect. But this dissent from Justice Thomas, which garnered only one additional Justice, confirms my belief that the majority of the Supreme Court does not really agree that the Second Amendment works just like most other rights protected by the Constitution.

The Supreme Court of Canada dealt the Harper government's tough-on-crime agenda a serious blow Tuesday by striking down a law requiring mandatory minimum sentences for crimes involving prohibited guns. The 6-3 ruling, penned by Chief Justice Beverley McLachlin, said the statute was unconstitutional as it upheld a 2013 Ontario Court of Appeal ruling that labelled the law cruel and unusual.

The ruling said the mandatory minimum sentence could ensnare people with "little or no moral fault" and who pose "little or no danger to the public." It cited as an example a person who inherits a firearm and does not immediately get a license for the weapon. "As the Court of Appeal concluded, there exists a 'cavernous disconnect' between the severity of the licensing-type offence and the mandatory minimum three-year term of imprisonment," McLachlin wrote for the majority.

Justice Minister Peter MacKay said in a statement that the government will review the decision to determine "next steps towards protecting Canadians from gun crime and ensuring that our laws remain responsive."...

Liberal Leader Justin Trudeau said there is a place for mandatory minimums in certain situations, noting that past Liberal governments have introduced them for "extreme crimes."

"But I think the over-use of them that the Supreme Court has highlighted, by this Conservative government, isn't necessarily doing a service to Canadians, both by not necessarily keeping us that much safer and also wasting large amount of taxpayers dollars on unnecessary court challenges," he told reporters in Oakville.

Keeping Canadians safe is cited by the government as the reason for its tough sentencing laws. McLachlin took aim at that justification in her ruling. "The government has not established that mandatory minimum terms of imprisonment act as a deterrent against gun-related crimes," she wrote. "Empirical evidence suggests that mandatory minimum sentences do not, in fact, deter crimes."

The court was deciding two appeals involving mandatory minimum sentences for gun crimes brought by the Ontario and federal attorneys general. The top court upheld the appeal court's quashing of both the three-year mandatory minimum for a first offence of possessing a loaded prohibited gun, as well as the five-year minimum for a second offence.

The Ontario and federal governments argued that the minimums do not breach the charter protection against cruel and unusual punishment. The new sentencing rules were enacted in 2008 as part of a sweeping omnibus bill introduced by the federal Conservatives.

Monday, February 23, 2015

"What rights do felons have over their surrendered firearms?"

The question in the title of this post is the substance of the title of this helpful SCOTUS argument preview of Henderson v. US authored by Richard Re over at SCOTUSblog. Here are excerpts which highlight why I think of Henderson as an interesting and dynamic sentencing case:

Tuesday, the Court will hear argument in Henderson v. United States, a complex case that offers a blend of criminal law, property, and remedies, with soft accents of constitutionalism. The basic question is this: when an arrested individual surrenders his firearms to the government, and his subsequent felony conviction renders him legally ineligible to possess those weapons, what happens to the guns?

The petitioner, Tony Henderson, was a Border Patrol agent convicted of distributing marijuana, a felony offense. Shortly after being arrested in 2006, Henderson surrendered his personal collection of firearms and other weapons to federal agents as a condition of release during the pendency of his criminal case. According to Henderson, his weapons collection included valuable items that had long been in the family, as well as an “antique.” Moreover, the collection was and remains Henderson’s lawful property. So, starting in 2008, Henderson asked authorities to transfer his weapons collection to someone else. But prosecutors and courts alike declined. Understandably enough, Henderson didn’t want his collection to escheat to the government like so much feudal property. So he’s pressed his rights to the Supreme Court.

The legal issues start with a conflict between a procedural rule and a federal statute. Under Federal Rule of Criminal Procedure 41, the government usually has to “return” a defendant’s lawful property. But that can’t happen in Henderson’s case because a federal criminal law (18 U.S.C. § 922(g)(1)) prohibits convicted felons, including Henderson, from possessing firearms. So if Rule 41 were allowed to operate according to its terms, Henderson would instantly be in violation of Section 922(g)(1). The courts below recognized that result as contrary to federal law and policy. (In a footnote in its merits brief, the federal government acknowledges that some of Henderson’s long-withheld weapons collection actually doesn’t consist of firearms at all. The government accordingly assures the Court that the “FBI is making the necessary arrangements to return the crossbow and the muzzle-loading rifle to petitioner.”)

To get around Section 922(g)(1), Henderson asked the government to transfer his firearms to third parties who are permitted to possess such items – specifically, either his wife or a friend who had promised to pay for them. Those proposed transfers, Henderson points out, wouldn’t result in his own possession of the firearms. And, critically, the proposed transfers would honor Henderson’s continued ownership of the weapons.... While Rule 41 by its terms may authorize only the “return” of property, Henderson argues that the federal district courts have “equitable” authority to direct transfers to third parties....

Without questioning that federal equitable authority operates in this area, the courts below apparently rejected Henderson’s transfer request in part based on the ancient rule of “unclean hands.” Under this venerable maxim, a wrongdoer (whose hands are figuratively dirty) may not seek relief at equity in connection with his own wrongful act. Based on a broad view of that precept, the courts below seemed to say that convicted felons are categorically barred from equitable relief as to their government-held property. Henderson contends that this holding revives ancient principles of “outlawry,” whereby criminals lose the protection of the law, while also running afoul of the Due Process Clause, the Takings Clause, and other constitutional provisions. However, the Solicitor General disputes that the decision below actually rested on this ground and — more importantly — has declined to defend it.

Instead, the federal government defends the result below on the ground that Section 922(g)(1) should be read to prohibit not just felons’ actual possession of firearms, but also their “constructive possession” of such weapons. On this view, impermissible constructive possession occurs when a convicted felon can exert some control over the next physical possessor of a particular item of property. Thus, Henderson would exert constructive possession – barred by federal law – if he could direct the transfer of his firearms to any particular person, including his wife or friend. Such direction, the government contends, would also create an unacceptable risk of letting the firearm find its way back to the felon. A permissible approach, in the government’s opinion, would be for it to transfer weapons to a licensed firearms dealer for sale, with proceeds going to the convicted felon.

Having gotten the federal government to endorse some remedial third-party transfers – a significant development in itself – Henderson asks why a convicted felon can’t at least nominate specific third parties, like a museum or a relative, to receive previously surrendered firearms that double as historical artifacts or family heirlooms....

While the ultimate outcome may turn in part on case-specific facts, the case touches on a number of important public debates. This becomes most obvious when the parties peripherally joust over the Second Amendment. The case has also drawn a number of amici. For instance, the Institute for Justice connects the case to public debate over forfeitures by asserting an aged canon against such forfeitures. Meanwhile, the National Association of Criminal Defense Lawyers and the National Rifle Association of America respectively argue from the Excessive Fines Clause and, of course, the Second Amendment. The Brady Center to Prevent Gun Violence, the government’s only amicus, also joins issue.

Sunday, January 18, 2015

"Smart Guns Save Lives. So Where Are They?"

The question in the title of this post is one that long-time readers know I have been asking on this blog for nearly a decade. Today the question also serves as the headline for this Nicholas Kristof op-ed in the New York Times. Here are excerpts:

About 20 children and teenagers are shot daily in the United States, according to a study by the journal Pediatrics. Indeed, guns kill more preschool-­age children (about 80 a year) than police officers (about 50), according to the F.B.I. and the Centers for Disease Control and Prevention.

This toll is utterly unnecessary, for the technology to make childproof guns goes back more than a century. Beginning in the 1880s, Smith & Wesson (whose gun was used in the Walmart killing) actually sold childproof handguns that required a lever to be depressed as the trigger was pulled. “No ordinary child under 8 years of age can possibly discharge it,” Smith & Wesson boasted at the time, and it sold half-­a-­million of these guns, but, today, it no longer offers that childproof option.

Doesn’t it seem odd that your cellphone can be set up to require a PIN or a fingerprint, but there’s no such option for a gun? Which brings us to Kai Kloepfer, a lanky 17­year­old high school senior in Boulder, Colo. After the cinema shooting in nearby Aurora, Kloepfer decided that for a science fair project he would engineer a “smart gun” that could be fired only by an authorized user....

Kloepfer designed a smart handgun that fires only when a finger it recognizes is on the grip. More than 1,000 fingerprints can be authorized per gun, and Kloepfer says the sensor is 99.999 percent accurate. A child can’t fire the gun. Neither can a thief — important here in a country in which more than 150,000 guns are stolen annually.

Kloepfer’s design won a grand prize in the Intel International Science and Engineering Fair. Then he won a $50,000 grant from the Smart Tech Challenges Foundation to refine the technology. By the time he enters college in the fall (he applied early to Stanford and has been deferred), he hopes to be ready to license the technology to a manufacturer.

There are other approaches to smart guns. The best known, the Armatix iP1, made by a German company and available in the United States through a complicated online procedure, can be fired only if the shooter is wearing a companion wristwatch.

The National Rifle Association seems set against smart guns, apparently fearing that they might become mandatory. One problem has been an unfortunate 2002 New Jersey law stipulating that three years after smart guns are available anywhere in the United States, only smart guns can be sold in the state. The attorney general’s office there ruled recently that the Armatix smart gun would not trigger the law, but the provision has still led gun enthusiasts to bully dealers to keep smart guns off the market everywhere in the U.S.

Opponents of smart guns say that they aren’t fully reliable. Some, including Kloepfer’s, will need batteries to be recharged once a year or so. Still, if Veronica Rutledge had had one in her purse in that Idaho Walmart, her son wouldn’t have been able to shoot and kill her.

“Smart guns are going to save lives,” says Stephen Teret, a gun expert at the Johns Hopkins Bloomberg School of Public Health. “They’re not going to save all lives, but why wouldn’t we want to make guns as safe a consumer product as possible?” David Hemenway, a public health expert at Harvard, says that the way forward is for police departments or the military to buy smart guns, creating a market and proving they work....

Smart guns aren’t a panacea. But when even a 17­year­old kid can come up with a safer gun, why should the gun lobby be so hostile to the option of purchasing one? Something is amiss when we protect our children from toys that they might swallow, but not from firearms. So Veronica Rutledge is dead, and her son will grow up with the knowledge that he killed her — and we all bear some responsibility when we don’t even try to reduce the carnage.

Among other potential benefits, I think a sophisticated commitment by gun rights advocated to smart gun technologies could in some ways expand gun rights to people now too often denied their rights by overly broad federal firearm restrictions.

Right now, for example, anyone convicted of any felony is forever criminally precluded from ever even possessing a firearm. In a world with more technologically sophisticated guns, some kind of microchip might be installed in certain hunting rifles so that they only work at designated times in designated areas and perhaps then persons guilty of nonviolent felonies could be exempted from broad felon-in-possession prohibitions in order to be able to use these kinds of guns for sport. Or, perhaps technology might allow all persons after completing their formal punishment to still be able to exercise their Second Amendment right to keep and bear arms: ex-cons might be permitted only access to smart guns with GPS tracking/reporting technology (something comparable to the internet tracking/screening software now regularly required to be on sex offenders' computers) so that authorities can regularly follow when and how former felons are exercising their gun rights.

Tuesday, November 18, 2014

This interesting local investigative press report from Minnesota provides further evidence that mandatory minimum sentencing schemes are rarely applied consistently or evenly. The article is headlined "Mandatory sentences not always the case for Minnesota gun crimes," and here are excerpts:

Hennepin County judges have come under fire recently for their sentencing habits. Several top Minneapolis leaders are claiming some judges are soft on gun crimes, allowing dangerous criminals back on the streets when they could be in prison. To separate fact from fiction, KARE 11 Investigators analyzed every sentence for every felony gun crime during the past three years. We found that judges do not hand down mandatory minimum sentences in the majority of gun crime cases.

Under Minnesota law there is a mandatory minimum amount of time criminals who use a gun should be sentenced to serve in prison. But our KARE 11 investigation found the amount of time they are sentenced to prison, if they get prison time at all, varies greatly from court to court and judge to judge....

Our analysis of sentencing data provided by the Minnesota Sentencing Guidelines Commission reveals in gun cases across all of Minnesota, judges give less than the mandatory minimum sentence 53% of the time. In Hennepin County, that jumps to 56%. Judge Richard Scherer, Judge Susan Robiner, Judge Mark Wernick, Judge Joseph Klein and Judge Daniel Moreno downward depart from mandatory sentencing in felony gun cases in more than two thirds of the cases they oversee. "And that's too much" said Hennepin County Attorney Mike Freeman.

Freeman's office routinely butts heads with district judges when it comes to sentencing in gun cases, especially when the conviction is for a felon being in possession of a handgun. On average in Minnesota, prosecutor's object to a judge's reduced sentence in gun cases only 12% of the time. But in Hennepin County, it happens in nearly 30% of gun cases. "I think the numbers speak for themselves. There's a different climate on this bench than there is elsewhere in this state," said Freeman.

But 4th District Chief Judge Peter Cahill disagrees. He says judges cannot be a rubber stamp for police and prosecutors, and the most important thing for them is to be fair and impartial. "We can't worry about stats," said Cahill. When KARE 11 Investigative reporter A.J. Lagoe asked Chief Judge Cahill if mandatory did not mean mandatory in Minnesota, Cahill responded, "not really." He says calling the state's mandatory minimum sentences mandatory is a "bit of a misnomer."

Cahill said the issue is very complex, and added "If you read the statute specifically, the legislature gave the court the ability to depart from the gun sentencing scheme." There is a section in Minnesota's minimum sentencing law that allows judges to disregard mandatory sentencing in gun cases if there are "substantial and compelling" reasons to do so. “If you read the statute specifically, the legislature gave the court the ability to depart from the gun sentencing scheme.”

Are there truly "substantial and compelling reasons" to hand down a lesser sentence in the majority of gun cases? It depends on who you ask. In the wake of a series of deadly summer shootings, Minneapolis's Police Chief Janee Harteau said, "we are arresting people who should have been kept in jail." Harteau and City Council President Barb Johnson began publically calling out Hennepin County judges for being soft on gun crimes and allowing dangerous criminals back on the street unnecessarily. "I am calling to them publicly this time to take gun crime seriously," said Johnson. "The penalties are there, impose them! When someone is arrested with a gun they need to do time!"

Minnesota sentencing statutes have a section referred to by the legal community as "mandatory mandatory sentences." If you're convicted a second time for a gun offense, judges are given no wiggle room. The law requires them to hand down at least the mandatory minimum. "Those are what we call hard 'mandatories' where there's no leeway for the court and we do impose those," said Chief Judge Cahill.

But KARE 11's investigation found that's not always the case. Take for example the rap sheet of Khayree Copeland. Copeland was busted in 2008 as a juvenile for possession of a short barreled shotgun. In 2011, now an adult, he was caught again with a gun. As a felon in possession, the mandatory minimum sentence he was facing was five years in prison. However Judge Robiner sentenced him to probation. Later that same year, Copeland was arrested again while carrying a handgun. His second offense as an adult, this time the law requires he get the "mandatory- mandatory" five years. But court records show Judge Richard Scherer gave him only four years in prison. "Members of my office protested both times and rightly so," said Freeman....

NOTE: While Hennepin judges see far and away more gun crime cases than any other jurisdiction, Carlton County judges are the most likely to cut a defendant a break. Judges there gave less than the mandatory minimum 100% of the time in the past three years.

Sunday, November 16, 2014

The title of this post is the title of this new paper by Robert Luther III now available via SSRN. Here is the abstract:

This article discusses the restoration of firearm rights for felons and specifically addresses the methods by which individuals convicted of felonies under state law may be relieved of collateral federal firearms disabilities in the Fourth Circuit, with a particular emphasis on the practice in Virginia. It concludes by calling on the Fourth Circuit to make clear in an appropriate case that “a defendant’s ‘civil rights’ have been restored under state law for purposes of 18 U.S.C. § 921(a)(20) if the state has also restored the defendant’s right to possess firearms.”

Due to the Supreme Court of Virginia's interpretation of the Virginia Constitution in Gallagher v. Commonwealth, which concluded that the governor lacked the authority to restore firearm rights and that only the state trial court could do so, the Fourth Circuit’s failure to construe 18 U.S.C. § 921(a)(20) as suggested will have the unintended and disparate effect of failing to relieve all state-convicted felons in Virginia from their collateral federal firearm disabilities. To read 18 U.S.C. § 921(a)(20) not to remove a federal firearms disability when the felon has received the unrestricted restoration of his firearm rights by a Virginia trial court would yield a perverse result because the purpose of this statute was to redirect the restoration process to the states.

Monday, September 29, 2014

As long-time readers know, ever since the Supreme Court's Second Amendment Heller ruling, I have long thought federal criminal law's threat of severe sentences on any and all felons in possession of any and all firearms is constitutionally questionable. Now, thanks to this post by Eugene at The Volokh Conspiracy, I see that one federal district court has finally held that there are as-applied Second Amendment problems with the federal felon-in-possession criminal statute.

The notable Second Amendment ruling comes in Binderup v. Holder, No. 13-cv-06750 (E.D. Pa. Sept. 25, 2014) (available here). Interestingly (and perhaps not surprisingly), Binderup is a civil rights suit brought by a relatively sympathetic individual with a minor criminal past, not a case involving a federal criminal defendant claiming the Second Amendment precludes his prosecution. And here are excerpts from the start and end of the lengthy opinion:

As further discussed below, plaintiff distinguishes himself from those individuals traditionally disarmed as the result of prior criminal conduct and demonstrates that he poses no greater threat of future violent criminal activity than the average law-abiding citizen. Therefore, he prevails on his as-applied challenges to § 922(g)(1) on Second-Amendment grounds under the framework for such claims set forth by the United States Court of Appeals for the Third Circuit in United States v. Barton, 633 F.3d 168 (3d Cir. 2011)....

Because plaintiff’s statutory claim fails, I reach his alternative constitutional claim asserted in Count Two. For the reasons expressed above, I conclude that plaintiff has demonstrated that, despite his prior criminal conviction which brings him within scope of § 922(g)(1)’s firearm prohibition, he poses no greater risk of future violent conduct than the average law-abiding citizen.

Therefore, application of § 922(g)(1) to him violates the Second Amendment to the United States Constitution under the framework set for the by the United States Court of Appeals for the Third Circuit in United States v. Barton, 633 F.3d 168 (3d Cir. 2011). Accordingly, plaintiff is, and defendants are not, entitled to summary judgment on plaintiff’s as-applied constitutional challenge asserted in Count Two of the Complaint.

It now will be real interesting to see if the feds will appeal this ruling to the Third Circuit or instead just leave it be.

Wednesday, September 17, 2014

As reported in this post last month, a high-profile federal gun case in upstate New York involved federal prosecutors seeking a statutory maximum sentencing term of 10 years in prison when the applicable guideline recommend only 18 to 24 months for the offense. This new local article, headlined "Woman tied to firefighter ambush sentenced to 8 years," details that the feds today were successful in securing a way-above-guideline federal gun sentence in the case:

The woman convicted of buying guns for a man that were used to kill two firefighters on Christmas Eve 2012 was sentenced to eight years in prison on federal charges Wednesday. The sentence, imposed by U.S. District Judge David Larimer, will run concurrent with a state sentence Dawn Nguyen is now serving of 16 months to four years.

On June 6, 2010, Nguyen bought the semiautomatic rifle and shotgun that William Spengler Jr. used when he fatally shot two volunteer firefighters Dec. 24, 2012. She claimed on a federal firearms transaction form that the guns were for her, when she was purchasing them for Spengler.

"I'm sure Miss Nguyen wishes she could take back that decision she made on that June day, but life is not like that," Larimer said in federal court Wednesday morning. Assistant U.S. Attorney Jennifer Noto in court Wednesday had argued that Nguyen's actions directly led to the Christmas Eve killings. "She should have foreseen the possibility of serious harm," said Noto....

Spengler had previously served 17 years in prison for fatally beating his grandmother with a hammer in 1980.

Larimer on Wednesday said he believed Nguyen knew of Spengler's dangerousness, and that she likely knew the facts behind Spengler's killing of his grandmother. Speaking of Spengler's past crime, Larimer said, "that should raise not one but hundreds of red flags that maybe this is not the kind of person who you want to be giving guns to."

Nguyen's lawyer Matthew Parrinello maintained that Nguyen did not know the specifics of Spengler's earlier crime. "This was a quirky, weird, crazy neighbor that she knew," said Parrinello. "But he was very nice, very kind and he did things for her family."

Dawn Nguyen on Wednesday faced the court room — which was packed with police officers, West Webster, N.Y., volunteer firefighters and her relatives — and told the crowd that she was sorry for her actions.

Monday, September 15, 2014

I am pleased to see that by LawProf Richard M. Re now has posted on his (wonderfully titled) Re's Judicata blog some new critical thoughts about the Sixth Circuit panel ruling late last week in US v. Young, No. 13-5714 (6th Cir. Sept. 11, 2014) (available here). Young rejected an Eighth Amendment claim by the defendant by ruling that a mandatory 15-year federal imprisonment term was not grossly disproportionate for a felon's possession of shotgun shells. I first blogged about the Young ruling here, and I have not (yet) commented further because I was involved in the briefing and argument to the Sixth Circuit as an amicus representing NACDL.

Helpfully, Prof Re's extended post on Young, which is titled "A 'Shell' Game in the Sixth Circuit?", highlights some of my own deep concerns about the ruling. I recommend everyone check out the full post, which gets started this way:

In US v. Young, the Sixth Circuit recently affirmed a startlingly severe sentence for what seems like innocuous conduct, and the blogosphere has taken note. As Eugene Volokh put it in his post title, the case involved a “15-year mandatory minimum federal sentence for possessing shotgun shells (no shotgun) almost 20 years after past felonies.” The case might go to the Supreme Court on the Eighth Amendment question it raises.

Viewed from another angle, Young illustrates two reasons to lament the rarity of executive clemency. First, whether Young’s sentence is just seems to depend on factors that weren’t pressed in court but that executive officials likely know about. A robust clemency tradition would bring those factors to light. Second, in the absence of executive clemency, the Sixth Circuit seems to have reached outside the proven record to do the executive’s job for it — and, in doing so, the court relied on allegations and innuendo instead of judicial findings.

Thursday, September 11, 2014

Because I filled an amicus brief on behalf of defendant Edward Young and participated in oral argument as well, I am much too close to the Eighth Amendment issue resolved against the defendant today in US v. Young, No. 13-5714 (6th Cir. Sept. 11, 2014) (available here), to provide any objective analysis and perspective. And rather than provide my biased analysis in this post, let me for now be content to reprint the start the Sixth Circuit panel's per curiam ruling:

Edward Young received a mandatory fifteen-year prison sentence for the crime of possessing seven shotgun shells in a drawer. He came into possession of the shells while helping a neighbor sell her late husband’s possessions. When he eventually discovered them, he did not realize that his legal disability against possessing firearms — resulting from felonies committed some twenty years earlier — extended to ammunition. See 18 U.S.C. § 922(g)(1). Under the Armed Career Criminal Act (ACCA), Young received a mandatory fifteen-year sentence.

Young now asks this court to conclude that the ACCA, as applied to him, is unconstitutional under the Eighth Amendment because the gravity of his offense is so low as compared to the harshness of his sentence, and unconstitutional under the Fifth Amendment because he lacked notice. Our precedent compels us to reject these claims and to affirm Young’s sentence.

To its credit, the per curiam decision in Young engages somewhat with some Eighth Amendment principles I sought to stress in my amicus efforts in this case, and Judge Stranch authored an extended concurrence discussing the policy arguments against mandatory minimums. But these aspects of the Young opinion do very little to salve my seething aggravation and frustration with this ruling.

A number of judges on the Sixth Circuit have a (somewhat justified) reputation for going to great lengths to bend and extend Eighth Amendment jurisprudence to block state efforts to execute brutal murderers after a state sentencing jury imposed the death penalty. Consequently, I was hopeful (though not optimistic) that at least one member of a Sixth Circuit panel could and would conclude the modern Eighth Amendment places some substantive and judicially enforceable limits on extreme application of extreme federal mandatory minimum prison terms. Apparently not. Though surely not the intent of this ruling, I think the practical message is that one needs to murder someone with ammunition rather than just possess it illegally for the Sixth Circuit to be moved by an Eighth Amendment claim. (I was hoping to save a screed about this ruling for a future post, but obviously this is already a bit too raw for me to be able to hold my blog tongue.)

I am hopeful that the defendant will be interested in seeking en banc review and/or SCOTUS review, and thus I suspect the (obviously uphill) legal fight against this extreme sentence will continue. I plan to continue helping with that fight, and I would be eager to hear from others eager to help as well.

Monday, August 25, 2014

Is Chicago now providing more support for the claim that more guns means less crime?

The question in the title of this post is prompted by this new Washington Times article (hat tip: C&C), which carries the headline "Chicago crime rate drops as concealed carry applications surge; City sees fewer homicides, robberies, burglaries, car thefts as Illinois residents take arms." Here are excerpts:

Since Illinois started granting concealed carry permits this year, the number of robberies that have led to arrests in Chicago has declined 20 percent from last year, according to police department statistics. Reports of burglary and motor vehicle theft are down 20 percent and 26 percent, respectively. In the first quarter, the city’s homicide rate was at a 56-year low.

“It isn’t any coincidence crime rates started to go down when concealed carry was permitted. Just the idea that the criminals don’t know who’s armed and who isn’t has a deterrence effect,” said Richard Pearson, executive director of the Illinois State Rifle Association. “The police department hasn’t changed a single tactic — they haven’t announced a shift in policy or of course — and yet you have these incredible numbers.”

As of July 29 the state had 83,183 applications for concealed carry and had issued 68,549 licenses. By the end of the year, Mr. Pearson estimates, 100,000 Illinois citizens will be packing. When Illinois began processing requests in January, gun training and shooting classes — which are required for the application — were filling up before the rifle association was able to schedule them, Mr. Pearson said.

The Chicago Police Department has credited better police work as a reason for the lower crime rates this year. Police Superintendent Garry F. McCarthy noted the confiscation of more than 1,300 illegal guns in the first three months of the year, better police training and “intelligent policing strategies.” The Chicago Police Department didn’t respond to a request for comment from The Washington Times.

However, the impact of concealed carry can’t be dismissed. Instead of creating more crimes, which many gun control advocates warn, increased concealed carry rates have coincided with lower rates of crime.

A July study by the Crime Prevention Research Center found that 11.1 million Americans have permits to carry concealed weapons, a 147 percent increase from 4.5 million seven years ago. Meanwhile, homicide and other violent crime rates have dropped by 22 percent.

“There’s a lot of academic research that’s been done on this, and if you look at the peer-reviewed studies, the bottom line is a large majority find a benefit of concealed carry on crime rates — and, at worst, there’s no cost,” said John Lott Jr., president of the Crime Prevention Research Center based in Swarthmore, Pennsylvania. “You can deter criminals with longer prison sentences and penalties, but arming people with the right to defend themselves with a gun is also a deterrence.”

I know that all the research concerning relationships between gun laws and crime are controversial, and I am certain that these recent Chicago experience will not come close to resolving these on-going debates. Still, whatever might account for the good crime news out of Chicago, I hope everyone is inclined to celebrate the reality of greater personal liberty and less crime in the Windy City.

Thursday, June 26, 2014

I am not a First Amendment expert, and thus I cannot expertly assess all the Justices' First Amendment work today in the SCOTUS abortion buffer-zone ruling in McCullen v. Coakley (available here). But a quick review of the Chief Justice's majority opinion revealed that the Court struck down a Massachusetts regulatory law justified on public safety grounds using intermediate scrutiny because the state had "not shown that it seriously undertook to address the problem with less intrusive tools readily available to it [nor] that it considered different methods that other jurisdictions have found effective." Id. slip op. at 27. As the title to this post suggests, I wonder if court analysis of Second Amendment challenges to federal, state and local gun regulations might be impacted by the Supreme Court's First Amendment analysis in McCullen.

As of this writing, it is not yet even clear what level of scrutiny courts should be applying toSecond Amendment challenges to federal, state and local gun regulations. But in many settings, many courts have adopted the same basic intermediate analysis that led to Massachusetts' law being found unconstitutional in McCullen. Of particular interest, therefore, is the language quoted above, in which the Chief Justice assails Massachusetts for failing to seriously explore how to "address the [public safety] problem with less intrusive tools" and to consider "different methods that other jurisdictions have found effective." I suspect many gun rights advocates, when pressing challenges to federal, state and local gun regulations defended on the basis of public safety, will be quick to quote this language and to assert that a jurisdiction's gun restrictions should be struck down absent evidence the state seriously explored "less intrusive" restrictions and/or considered "different [gun laws] that other jurisdictions have found effective."

Monday, June 16, 2014

When I see that the Supreme Court has split 5-4 in a (non-sentencing) criminal case, I typically expect to see certain usual suspects on each side of the divide with Justice Kennedy serving as the swing vote. Today, in Abramski v. US, No. 12-1493 (S. Ct. June 16, 2014) (available here), Justice Kennedy is the swing vote joining with the more liberal members of the Court. But they are together upholding a federal conviction — no doubt, I am prepared to say, because at issue is the broad application of a federal gun control statute.

Here is how Justice Kagan's opinion for the Court gets started in Abramski:

Before a federally licensed firearms dealer may sell a gun, the would-be purchaser must provide certain personal information, show photo identification, and pass a background check. To ensure the accuracy of those submissions, a federal statute imposes criminal penalties on any person who, in connection with a firearm’s acquisition, makes false statements about “any fact material to the lawfulness of the sale.” 18 U.S.C. § 922(a)(6). In this case, we consider how that law applies to a so-called straw purchaser — namely, a person who buys a gun on someone else’s behalf while falsely claiming that it is for himself. We hold that such a misrepresentation is punishable under the statute, whether or not the true buyer could have purchased the gun without the straw.

Justice Scalia's dissent, which garnered the votes of the Chief, Justice Thomas and even (the usually-consistent friend of federal prosecutors) Justice Alito, gets started this way:

Bruce Abramski bought a gun for his uncle from a federally y licensed gun dealer, using money his uncle gave him for that purpose. Both men were legally eligible to receive and possess firearms, and Abramski transferred the gun to his uncle at a federally licensed gun dealership in compliance with state law. When buying the gun, Abramski had to fill out Form 4473 issued by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF). In response to a question on the form, Abramski affirmed that he was the “actual/transferee buyer” of the gun, even though the form stated that he was not the “actual transferee/buyer” if he was purchasing the gun for a third party at that person’s request and with funds provided by that person.

The Government charged Abramski with two federal crimes under the Gun Control Act of 1968, as amended, 18 U.S.C. §§ 921–931: making a false statement “material to the lawfulness of the sale,” in violation of § 922(a)(6), and making a false statement “with respect to information required by [the Act] to be kept” by the dealer, in violation of § 924(a)(1)(A). On both counts the Government interprets this criminal statute to punish conduct that its plain language simply does not reach. I respectfully dissent from the Court’s holding to the contrary.

Monday, May 26, 2014

The title of this post is the title of this new paper by Mary Fan now available via SSRN. Though posted on line a few weeks ago, this piece strikes me as distinctly and depressingly timely in the wake of the mass shooting in California a few days ago. Here is the abstract:

Recent mass shootings at Navy Yard, Newtown, Aurora and elsewhere have jolted Congress and the states into considering gun violence prevention. More than 1,500 gun-related bills have been introduced since 2013, after the slaughter in Newtown of twenty elementary school children and six adults. Current legislation and debates are shaped by the specter of a heavily armed, mentally ill individual hunting in public places such as schools, businesses, and workplaces. In the states, the most successful type of legislation involves firearms restrictions for the mentally ill. In Congress, the legislation that garnered the most debate was a ban on assault weapons and large-capacity magazines. While the national attention to firearms violence prevention is salutary, for law and policy to tackle the core of the problem it is important to address two empirical questions: Who are the dangerous individuals committing most firearms homicides and why do the law’s current screens miss them?

This article draws on data from the National Violent Death Reporting System to answer the crucial foundational questions of who poses a danger and why the dangerous slip through existing legal screens. Presenting data on the most prevalent place of shooting, victim-shooter relationship, and the shooter’s prior history, the article shows that prevention of extraordinarily devastating firearms violence calls for attention to how the nation addresses “ordinary” violence. By ordinary violence, this article means violence that is often viewed as mundane, such as altercations between family members, friends and intimates in the home. Many perpetrators of firearms homicide have a history of such prior events -- yet a substantially smaller proportion of these violent episodes have been adjudicated, thereby slipping through existing screens for firearms restrictions. Based on these findings, the article discusses how discretion in dealing with “ordinary violence” can improve detection of the dangerous regardless of whether proposed firearms restrictions survive the gauntlet for new gun laws.

Friday, May 09, 2014

Thanks to this post by Eugene Volokh, I see that the Louisiana Supreme Court issued an interesting and important unanimous decision earlier this week upholding a state gun crime statute against a facial state constitutional challenge. Here is how this opinion in Louisiana v. Webb, No. 2013-KK-1681 (La. May 7, 2014) (available here), starts and ends:

We granted a writ to determine whether a recent constitutional amendment involving a fundamental right to bear arms found in La. Const. art. I, § 11 renders a criminal statute related to the possession of a firearm while possessing illegal drugs, facially unconstitutional.

According to the defendant, because the right to bear arms has been recently enshrined as a fundamental constitutional right, notwithstanding the fact the defendant was allegedly carrying illegal drugs while in possession of a firearm, La. R.S. 14:95(E) is facially unconstitutional. Essentially, the defendant argues that, even assuming he possessed illegal drugs, because La. R.S. 14:95(E) deals not only with illegal drugs but with firearms, the firearm aspect of the statute cannot survive strict judicial scrutiny, and the entire statute must be declared unconstitutional.

We disagree. Nothing in the recent constitutional amendment regarding firearms requires dismissal of the criminal charges against the defendant for carrying a firearm while in possession of illegal drugs.....

To promote public safety by curtailing drug trafficking, the state of Louisiana has a compelling interest in enhancing the penalty for illegal drug possession when a person engages in that illegal conduct with the simultaneous while in possession of a firearm. Undeniably, the right to keep and bear a firearm is a fundamental right in Louisiana. However, when a person is engaged in the unlawful conduct of possessing illegal drugs, the person’s own unlawful actions have “qualified his right” to engage in what would otherwise be the exercise of that fundamental right. See Helms, 452 U.S. at 420 (indicating “appellee’s own misconduct [in abandoning his child] had qualified his right to travel interstate.”).

Earlier, we observed that in amending Article I, § 11 of the constitution, the electorate tasked this court with applying a very technical legal test to answer a very practical question. From all aspects, we have found the technical points of the law constitutionally allow the state to make it a crime to possess an illegal drug with a firearm. We can now, therefore, answer this practical question: Is the act of possessing a firearm and illegal drugs so essential to the liberties citizens ought to be able to enjoy in an orderly society that a law to the contrary is unconstitutional? “We have held that the function of the court in construing constitutional provisions is to ascertain and give effect to the intent of the people who adopted it. It is the understanding that can reasonably be ascribed to the voting population as a whole that controls.” Caddo-Shreveport Sales and Use Tax Com'n v. Office of Motor Vehicles, Dept. of Public Safety and Corrections of State, 97-2233 (La. 4/14/98), 710 So.2d 776, 780. Nothing in Article I, § 11 of the constitution informs us that the electorate, whose intent is ultimately the intent that governs, believed that possessing firearms with illegal drugs meets the electorate’s expectations of a society whose hallmark is ordered liberty.

We, therefore, affirm the ruling of the district court, finding La. R.S. 14:95(E) is not unconstitutional, and that nothing in Article I, § 11 of the constitution requires the charges against the defendant to be quashed. This case is remanded to the district court for further proceedings.

Sunday, May 04, 2014

Should those who really favor gun rights protest the right to sell and own a safer gun?

The question in the title of this post is a little of my usual topics, but I need to vent a bit about this discouraging story in the Washington Post highlighting that some folks who support gun rights are against the idea of using technology to produce a safer gun. The article is headlined "Maryland dealer, under pressure from gun-rights activists, drops plan to sell smart gun," and here are excerpts:

A Rockville gun store owner who said he would sell the nation’s first smart gun — even after a California gun store removed the weapon from its shelves to placate angry gun-rights activists — backed down late Thursday night after enduring a day of protests and death threats.

Andy Raymond, the co-owner of Engage Armament, a store known for its custom assault rifles, had said earlier this week that offering the Armatix iP1 handgun was a “really tough decision” after what happened to the Oak Tree Gun Club near Los Angeles. Oak Tree was lambasted by gun owners and National Rifle Association members who fear the new technology will be mandated and will encroach on Second Amendment rights.

Electronic chips in the gun communicate with a watch that can be bought separately. The gun cannot be fired without the watch....

[A]fter hundreds of protests on his store’s Facebook page and online forums — a repeat of what Oak Tree faced — Raymond released a long video on the Facebook page saying he had received death threats and would not sell the gun. He apologized and took responsibility for the decision. He had sold none of the smart guns and would not, he said.

Earlier, Raymond had said he’s on the “right-wing vanguard of gun rights” but is vehemently opposed to gun rights activists arguing against the idea of a smart gun — or any gun. “To me that is so fricking hypocritical,” Raymond had said. “That’s the antithesis of everything that we pro-gun, pro-Second Amendment people should be. You are not supposed to say a gun should be prohibited. Then you are being no different than the anti-gun people who say an AR-15 should be prohibited.”...

Besides reliability in the face of danger, the opponents’ most pressing fear is that sales of the iP1 will trigger a New Jersey law mandating that all handguns in the state be personalized within three years of a smart gun’s going on sale anywhere in the United States. Similar proposals have been introduced in California and Congress.

Raymond said he didn’t want the law to kick in and didn’t think he’d be responsible if it did, because Oak Tree already had the gun for sale. He said the law was not his problem or Armatix’s. “This is not Armatix screwing over the people of New Jersey,” he said. “It’s the legislature screwing over the people of New Jersey. Bushmaster didn’t screw over the people of Newtown. Adam Lanza did. It’s just disgusting to me to see pro-gun people acting like anti-gunners. What is free if it’s not choice?”...

The demand for smart guns is subject to debate. Gun rights advocates, including the National Shooting Sports Foundation, say there seems to be little desire for such weapons at the moment. They point to a survey the group commissioned last year showing that 14 percent of Americans would consider buying a smart gun. “We think the market should decide,” Lawrence G. Keane, general counsel for the National Shooting Sports Foundation, told The Post this year.

Gun-control advocates believe that smart guns could reduce gun violence, suicides and accidental shootings. A dream of researchers and politicians for decades, the idea found renewed interest within the federal government following the massacre at Sandy Hook Elementary School in Newtown, Conn., in 2012. A group of Silicon Valley investors led by Ron Conway recently launched a $1 million contest to encourage smart-gun technology.

Numerous approaches are in development. Armatix uses RFID chips like those in anti-theft tags attached to clothing in stores. Other companies use a ring to enable the gun’s operation. Grips that recognize an owner are being tested, as are sensors to detect fingerprints and voices. The iP1, developed over a period of years by Armatix, a German firm, is the first smart gun to be marketed in the United States.

Increasing gun ownership is what Raymond said he was after in planning to sell the iP1. “If this gets more people, especially those on the fence, to go out and enjoy their Second Amendment freedoms, to go sport shooting and realize how much fun it is, then I am all for it,” Raymond said before changing his mind. “This is really not a bad thing.”

Regular readers know that I am both a supporter of the Second Amendment and of smart gun technology. If developed effectively, smart guns ought be be able to increase gun rights and reduce gun violence: e.g., smart gun technology might be a way to allow a former non-violent felon, who now is prohibited by federal law from possessing any firearm, to own a gun for self-protection that can only operate from his home. And smart gun technology ought to be able to provide effective digital evidence of gun use (and misuse) to be used by police and other law enforcement officials to investigate and prevent crime.

I understand the fears that some gun rights advocates may have about possible "misuse" of smart gun technology, but these folks should realize that these kinds of concerns about the misuse of a good technology (i.e., guns) are exactly what motivates gun control advocates. Moreover, as smart gun technology improves, I suspect it is only a matter of time before the real issue is how these guns are made and sold, not whether they are available.